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Appeals - Fresh Evidence - 'Cogency'. R. v. Nnane
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal dismissed a first degree murder appeal.
Here the court seek to admit fresh evidence on appeal, focussing on the Palmer 'cogency' element:The fresh evidence is inadmissible
[26] Fresh evidence may be received where the court considers it in the interests of justice to do so: Criminal Code, s. 683 (1)(d). It is not in the interests of justice to uphold a verdict that fresh evidence demonstrates is unreasonable. But nor is it in the interests of justice to undermine the finality of verdicts, and hence the integrity of the judicial process, by admitting fresh evidence routinely, especially several years later. The admission of fresh evidence is therefore exceptional: R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509 at paras. 89-90.
[27] The Palmer test for admitting fresh evidence is well-established and requires little elaboration. It involves consideration of three criteria:1. Admissibility – is the evidence admissible under the rules of evidence?;
2. Cogency – could the evidence reasonably be expected to have affected the verdict?; and
3. Due diligence – does the explanation offered for the failure to adduce the evidence at trial affect its admissibility?
R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. ....
Cogency
[30] The cogency criterion requires the court to make a qualitative assessment of the proposed fresh evidence. The evidence must be:1. relevant to a decisive or potentially decisive issue at trial;
2. credible in that it is reasonably capable of belief; and
3. sufficiently probative when taken with the other evidence adduced at trial that it could reasonably be expected to have affected the result.
Truscott (re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 99-100. ....
[32] This court’s task is not to determine the ultimate credibility or reliability of the proposed fresh evidence; it is to determine whether the evidence is sufficiently cogent to warrant its admission. This depends on a careful evaluation of the potential value of the evidence as well as the credibility of the witnesses: R. v. Snyder, 2011 ONCA 445, 278 O.A.C. 233, at para. 50.
[33] Although the proposed fresh evidence bears on the identity of the shooter, in my view it does not come close to being “reasonably capable of belief”. It is so obviously flawed – so compromised and self-serving – that no finder of fact could reasonably believe it. It is not remotely credible.
[34] This conclusion is based, in part, on the affidavit proffered by the appellant as part of the motion. As noted earlier, the appellant did not seek to have his affidavit admitted as fresh evidence on the appeal. Plainly, it would have been inadmissible as such, based not only on cogency problems but also his failure of due diligence, given his decision not to testify at trial: R. v. Maciel, 2007 ONCA 196, 222 O.A.C. 174, at para. 50.
[35] However, the inadmissibility of the appellant’s affidavit as fresh evidence does not render it irrelevant to the cogency analysis. It is part of the record compiled by the appellant in support of his motion to introduce Fountain’s fresh evidence, and it may be used in this context despite its inadmissibility as evidence on the appeal. ....
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[44] The proposed fresh evidence is not reasonably capable of belief. The interests of justice would not be served by admitting it. The fresh evidence motion must be dismissed. . R. v. R.G.
In R. v. R.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary factor of 'cogency', a factor in fresh evidence appeal situations:[78] When looking at the cogency of the evidence, it is necessary to apply a qualitative lens, one that does not concern itself with the ultimate reliability and credibility of the evidence: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 50-51; M.G.T., at para. 52. Rather, we look to the potential (not actual) value of the evidence and place it within the context of the trial evidence that is said to be undermined. As noted by this court in Truscott, at para. 100:The cogency inquiry requires a qualitative assessment of the evidence proffered on appeal. That evaluation must measure the probative potential of the evidence considered in the context of the entirety of the evidence admitted on appeal and heard at trial. If the fresh evidence considered in this context could reasonably be expected to have changed the result at trial, the evidence is sufficiently cogent to justify its admission on appeal, subject to a consideration of the explanation for the failure to lead that evidence. . R. v. R.G.
In R. v. R.G. (Ont CA, 2023) the Court of Appeal considers the law of 're-opening' a trial, here in a criminal trial context (but the law is largely applicable to both civil and criminal) and involving fresh evidence issues:[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.
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The Law on Reopening
[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.
[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.
[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
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The Application of Due Diligence
[104] Due diligence retains an essential purpose at reopening applications. Certainty and finality demand that everyone put their best foot forward at trial. Without a robust application of the due diligence criterion, trials would become trial runs, institutional concerns would abound, and victims would be endlessly revictimized. The integrity of the administration of justice simply cannot invite the relaxation of expectations that all, including defence counsel, advance their cases – their whole cases – the first time around.
[105] Therefore, as in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence.
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