Case: R. v. SDH, 2023 ABCA 145
Keywords: credibility; uneven scrutiny; s. 686(1)(a)(i) of the Criminal Code; R. v. W(D), 1991 CanLII 93 (SCC)
The Court of King’s Bench finds the Appellant guilty on charges of sexual assault, sexual interference, invitation to sexual touching, and incest. The Appellant is the complainant’s biological father. He denies all allegations. (See para. 1).
As described by the Court of Appeal (Watson, Hughes, and Kirker JJ.A.), this is a credibility case. The Appellant argues, inter alia, that the Trial Judge (Yungwirth J.) erred by applying “uneven scrutiny” to his evidence, engaging in “speculative or stereotypical thinking”, and that her reasons were insufficient. (See paras. 3, 8, and 12). The Court of Appeal finds no merit to these submissions and dismisses the appeal. In addition, the Appellant is ordered to surrender into custody within 3 business days. (See para. 13).
The Court of Appeal characterized the Appellant’s “uneven scrutiny” arguments – which are commonly raised in credibility cases – as an invitation for the court to “work back from the structure of the reasons for conviction and then compare those reasons to the evidence in a search for a structural deficiency indicative of the trier of fact having lost sight of the burden of proof”. (See para. 3; emphasis in original; see also R. v. W(D), 1991 CanLII 93 (SCC)). While the Court of Appeal accepted that W(D) errors may be found, the reasons emphasize that “uneven scrutiny” analyses must not descend into “formalism and judicial explication”. (See para. 3). Rather, citing R. v. Gerrard, 2022 SCC 13 at paras. 3-5, the Court of Appeal noted that “significant deference” is owed to a trial judge’s credibility findings. (See para. 4).
The Court of Appeal described “uneven scrutiny” as a technical complaint of processing error or an argument “saying the appeal court should reverse because there are reasons to doubt a trial finding or inference of fact”. (See para. 6). The Court of Appeal described a jurisdictional limit to the argument in s. 686(1)(a)(i) of the Criminal Code:
That Code section provides for appellate intervention on a conviction appeal based on the appeal court being of “the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”. Parliament did not provide for reversal of a conviction based on suspicion about what might have been in the mind of the trier of fact or that the trier of fact might have slipped on the foundational burden and standard. (See para. 7; emphasis in original).
Ultimately, the Court of Appeal concluded there was no processing error on the Trial Judge’s part. (See para. 7). The Court also rejected the argument that the Trial Judge had engaged in “speculative or stereotypical thinking”, finding that the Trial Judge was “merely noting the internal and external inconsistencies” of his testimony with other evidence. (See para. 10). Finally, the Court found “no merit” to the argument that the Trial Judge’s reasons were insufficient to permit meaningful appellate review. (See para. 12).
Counsel for the Appellant: Stacey Purser (Purser Law, Edmonton)
Counsel for the Respondent: Keith Joyce (Department of Justice and Solicitor General (AB), Edmonton)