EP#228 | When Judges Apply Two Standards: The Appeal Court Response

Not On Record | EP#228 | When Judges Apply Two Standards: The Appeal Court Response

Sponsored by EasyDNS Move your domain or web hosting to EasyDNS and support Not On Record: https://easydns.com/NotOnRecord Use promo code: notonrecord

In Episode 228 of *Not On Record*, Joseph Neuberger and Diana Davison examine **R. v. Hornsby, 2026 ONCA 604**, a significant Ontario Court of Appeal decision dealing with credibility assessment and “uneven scrutiny” in a criminal trial.

The Court of Appeal quashed convictions on all counts and ordered new trials after finding that the trial judge applied different standards when assessing the accused and complainant’s evidence. The judgment provides a useful framework for identifying flawed credibility analysis, including disproportionate attention to minor inconsistencies, treating detail as evidence of credibility for one witness but evidence of fabrication for another, relying on stereotypes or generalizations, failing to grapple with material weaknesses, and effectively reversing the burden of proof.

Joseph and Diana also discuss why detailed written closing submissions matter, how lawyers can build the record for an appeal, and why credibility analysis must be conducted carefully and independently for each count.