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Evidence - Credibility - Uneven Scrutiny

Evidence - Judicial Speculation

R v Chanmany (Ont CA, 2016)

In this criminal case, the Court of Appeal discusses the treatment of an 'uneven scrutiny' argument on appeal, being the argument that the trial judge was unbalanced in their treatment of the respective parties' evidence at trial:
[26] We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial: R. v. Aird, 2013 ONCA 447 (CanLII), 307 O.A.C. 183, at para. 39.

[27] An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.

[28] Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions: Howe, at para. 59.
On the issue of judicial speculation respecting facts, the court also stated:
[45] First, the distinction between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish. On the other hand, speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn.

[46] Second, without more, judicial speculation, like misapprehension of the evidence, does not mandate appellate correction. The speculation, like a misapprehension, must relate to material parts of the evidence and the error must play an essential part in the reasoning process leading to a finding of guilt: see, for example, R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] 3 S.C.R. 732, at paras. 1-2.

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