The judge believed X. The judge didn’t believe Y. But the judge could have believed Y. Therefore, the judge applied a different standard of scrutiny. Not so, according to the authorities.
R. v. O.N., 2017 ONCA 923, at para. 5.
The uneven scrutiny of evidence argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully.
R. v. J.H. (1995), 2005 CanLII 253 (ONCA), at para. 59.
A trial judge is entitled to reject an accused’s evidence on the basis of the considered and reasoned acceptance of conflicting evidence beyond a reasonable doubt.
To achieve success on an argument about uneven scrutiny, the appellant must point to something in the trial judge’s reasons or elsewhere in the trial record that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and the complainant.
It is not enough to show that the trial judge could have calibrated the evidence differently and reached a different conclusion.
See Stuart O’Connell Law Blog, Arguing Uneven Scrutiny,