Differing levels of scrutiny

R. v. Martin, 2010 ONCA 527 is a useful reminder that claims of judges applying inappropriate scrutiny seldom succeed.  The Court writes: 

 

Did the trial judge apply different levels of scrutiny when addressing the case for the defence and the case for the Crown?

 

[4]               This ground of appeal is often advanced.  In this case, the trial judge expressly cautioned himself against doing what the appellant says he did.  The trial judge outlined the defence evidence.  The trial judge addressed parts of that evidence, particularly the testimony of two friends of the complainant, in some detail.  It is clear that he regarded this evidence as potentially the most cogent part of the case for the defence.

 

[5]               Other than summarizing the evidence, the trial judge made no specific reference to the testimony that the appellant and the complainant seemed to get along well during the years in which the alleged sexual misconduct occurred.  In the context of the trial judge’s other findings made after a careful analysis of the complainant’s evidence and the similar fact evidence, the defence evidence that the complainant and the appellant seemed to get along well was of little, if any, value.  The trial judge could have accepted that evidence without in any way affecting his finding that despite their apparent friendly relationship, the appellant was sexually assaulting the young complainant.  The failure to specifically refer to this evidence was ultimately of no significance and did not constitute reversible error.