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Criminal - Executive Legal Officer (ELO). R. v. Swaine
In R. v. Swaine (Ont CA, 2025) the Ontario Court of Appeal considered a CCC s.683(1)(a,b) ['Powers of court of appeal'] application seeking several interlocutory fresh evidence-related orders, here in the context of unusual procedural facts and a Crown appeal from an acquittal:[9] Pursuant to s. 683(1)(a) and (b) of the Criminal Code, the Court of Appeal may order the production of “any writing, exhibit or other thing connected to the proceedings” and order a witness to be examined where the court “considers it in the interests of justice” to do so. In accordance with R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25, seeking the production of records and testimonial evidence in aid of a fresh evidence application engages with a two-part test. The applicant must demonstrate:. There is a reasonable possibility that the order for production or testimony could assist on the motion to produce fresh evidence; and
. There is a reasonable possibility that the order for production or testimony may be received as fresh evidence on appeal. See R. v. Jaser, 2023 ONCA 24, at para. 16. These reasons are brief (21 paras) and may be of interest to court-observers as it involves a now-retired sitting judge, no issued reasons and the involvement of the Executive Legal Officer (ELO).
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