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Criminal - Appeals - Fresh Evidence
MORE CASES
Part 2
. R. v. Khamo
In R. v. Khamo (Ont CA, 2023) the Court of Appeal allowed a fresh evidence application where the Crown consented:[8] The appellant seeks to adduce as evidence in the appeal, extracts from the proceedings in Jassem and Vinogradsky. The Crown concedes that the material should be received by this court, the appeal allowed, and the convictions quashed.
[9] We accept the Crown’s concession. Evidence is admissible on appeal if it is “in the interest of justice” to receive that evidence. The material proffered by the appellant impacts directly on the integrity of the criminal process in this case. The Crown’s concession in two subsequent proceedings that the trial should be stayed because the accused were unable to make full answer and defence without disclosure the Crown could not make would be entirely inconsistent with a Crown argument on this appeal that the appeal should be dismissed. . R. v. S.B.
In R. v. S.B. (Ont CA, 2023) the Court of Appeal considers the statutory criminal fresh evidence test [CCC s.683(1)]:[44] The court has broad discretion to receive fresh evidence on appeal where “it considers it in the interests of justice” under s. 683(1) of the Criminal Code. Specifically with respect to sentence appeals, s. 687(1) of the Criminal Code allows the court to receive evidence it thinks “fit to require or receive”. The Palmer test structures the court’s discretion in making this determination: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 20; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29. The test sets out four criteria concerned with due diligence, relevance, credibility, and impact on the result: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. . 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. Bakal
In R. v. Bakal (Ont CA, 2023) the Court of Appeal considered a criminal appeal where the appellant sought to adduce fresh evidence:[46] Section 683(1) of the Criminal Code allows an appellate court to receive fresh evidence on appeal “where it considers it in the interests of justice.” Admission of fresh evidence on appeal is discretionary and must be exercised having regard not only to the appellant’s interests in fully pursuing his appellate remedies, but also to the broader long-term interests of the administration of justice. As this court has stressed, “[w]hile it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record”: R. v. Snyder, 2011 ONCA 445, at para. 44.
[47] To introduce fresh evidence on appeal, the evidence must be:. Admissible under the operative rules of evidence [admissibility];
. Sufficiently cogent that it could reasonably be expected to have affected the verdict [cogency]; and
. If the first two criteria are met, there must be an explanation for the failure to adduce the evidence at trial which explanation affects the admissibility of the evidence [due diligence]: see R. v. O.F., 2022 ONCA 679, at para. 31, citing Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. [48] Assessing the cogency of the evidence requires the court to assess whether the proposed fresh evidence could reasonably make a difference to the outcome of the trial: R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 232, at para. 31, citing Snyder, at para. 51.The cogency requirement addresses three questions: (i) does the evidence relate to a potentially decisive issue; (ii) is it reasonably capable of belief; and (iii) is it sufficiently probative that it could be reasonably expected to have affected the outcome?: Dudar, at para. 31, citing Truscott, at para. 99.
[49] The appellant claims that Mr. Yusuf’s evidence is relevant to a decisive issue at trial, it is reasonably capable of belief, and is sufficiently probative such that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. He further claims that due to the non-communication order, he could not have provided the evidence at the time of trial.
[50] I disagree with the appellant’s assertion that the proposed fresh evidence could reasonably be expected “when taken with the other evidence adduced at trial, be expected to have affected the result”: Truscott, at para. 99. . R. v. McDonald
In R. v. McDonald (Ont CA, 2022) the Court of Appeal assessed a fresh evidence motion on a criminal appeal, here granting it (which is unusual):A) Whether to admit the proposed fresh evidence
[19] The test for the admission of fresh evidence is set out by the Supreme Court in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. This test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. Its objective is to strike a balance between, on the one hand, finality, and on the other, ensuring a just result: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 32. Additional evidence can only be admitted on appeal if the proposed evidence: 1) could not have, by the exercise of due diligence, been available at trial; 2) is relevant in that it bears upon a decisive or potentially decisive issue; 3) is credible in the sense that it is reasonably capable of belief; and 4) is such that, if believed, it could have affected the result at trial.
[20] In my view, all of these elements are met. As for the due diligence requirement, given the nature of the evidence, it was not, and could not have been, available at trial. It speaks to events that transpired as the proceeding moved through the system, up to and including the trial itself. Furthermore, the appellant was an unsophisticated, youthful defendant, with no prior experience in the criminal justice system and no legal training. It is not reasonable to expect that he knew, or could have known, about the perils of effectively waiving his right to silence or the use that could be made of his statements. Not only that, but the extent of counsel’s incompetence, including what she did or did not discuss with the appellant, could not have been known until after the trial concluded and she produced her complete file.
[21] The last three elements of the test – which have to do with the nature of the evidence itself – are also satisfied. Credibility assessments, the conduct of counsel, and overall trial fairness are all potentially decisive issues and of the utmost importance. The proposed evidence is clearly credible in that trial counsel herself confirms that she did not discuss with the appellant any of settlement privilege, the typical Crown posture when prosecuting domestic violence cases (and the unlikelihood of a resolution in such circumstances), the waiver of the right to silence, and the risk of cross-examination. Lastly, the evidence, if believed, goes to the heart of the appellant’s ineffective assistance of counsel claim and speaks directly to whether his was an informed waiver of the right to silence.
[22] I would therefore grant the application and admit the fresh evidence. . R. v. Smithen-Davis
In R. v. Smithen-Davis (Ont CA, 2022) the Court of Appeal considers the fresh evidence test in a criminal context:(ii) Fresh Evidence
[35] The proposed fresh evidence is key to the appellant’s application to re-open. Without the fresh evidence, there would be no reason to re-open. As Watt J.A. stated in the motion to quash, at para. 62, “[i]n this case, whether re-opening may be permitted, for all practical purposes, depends upon whether the court decides to receive the new evidence”.
[36] Watt J.A. also addressed the governing principles for admission of fresh evidence. He noted that under s. 683(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, the Court of Appeal may receive the evidence of any witness if the court considers it to be in the interests of justice to do so. He wrote at paras. 58-60:Where the proposed new evidence relates to an issue of fact contested at trial, in this case, the respondent’s participation in the events charged, three factors govern the decision:
i. admissibility
ii. cogency: and
iii. due diligence.
See, Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 203.
Admissibility and cogency are conditions precedent which a proponent must meet before the proposed new evidence may be received. The new evidence must be admissible under the governing rules of evidence. To satisfy the cogency requirement, the new evidence must be:
i. relevant, in that it bears upon a decisive or potentially decisive issue at trial;
ii. credible, in that it is reasonably capable of belief; and
iii. probative, such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [37] Thus, to satisfy the cogency requirement, the evidence must be relevant, credible, and probative.
[38] When assessing the credibility factor, one asks whether the evidence is reasonably capable of belief: R. v. Litt, 2021 ONCA 510, at para. 30 and R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 134. The assessment of whether the evidence is reasonably capable of belief is conducted by the panel hearing the application on the basis of the paper record before it, which includes cross-examinations on the affidavits.
[39] The appellant submits that the court’s task is not to decide the evidentiary value of Mr. Hamilton’s and the appellant’s evidence. Rather, it is to decide whether a trier of fact will get to decide the evidentiary value of their evidence. Counsel submits that the question is whether the evidence could raise a reasonable doubt.
[40] The Crown submits that there must be a threshold credibility analysis and that the question is whether the evidence is reasonably capable of belief such that it is worth sending the case back to trial. The Crown rejects the reasonable doubt characterization advanced by the appellant. As stated in R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at para. 33, citing R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 271, at para. 50, the purpose of the inquiry “is not to determine the ultimate credibility of the evidence, but rather to assess whether the evidence is sufficiently cogent to warrant admission on appeal.” Dudar also described the analysis in R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 OR (3d) 582 (C.A.) stating at para. 36:In R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 O.R. (3d) 582 (C.A.), this court again dismissed a fresh evidence application in part because it found that the proposed fresh evidence was not reasonably capable of belief. In that case, the appellant was convicted of first degree murder based on the evidence of three unsavoury witnesses, including the appellant’s son. On appeal, the appellant sought to admit the fresh evidence of a friend who did not testify at trial but who claimed that the appellant’s son, who had been present at the murder, had called the friend many times after the appellant’s arrest and told her the appellant had not committed the crime. Osborne J.A. noted, at p. 602, that he only needed to determine whether the fresh evidence was “reasonably capable of belief”, not whether he believed it:In the determination of whether the tendered fresh evidence is reasonably capable of belief, we are required to engage in a form of credibility assessment. We must determine, not whether we believe the fresh evidence, rather, we must determine whether the fresh evidence is “reasonably capable of belief.” This was the determining factor in the decision to reject the fresh evidence in Palmer, supra. In Palmer, McIntyre J. made it clear that if the proposed fresh evidence does not pass the “reasonably capable of belief” test, “that ends the matter.” In my opinion, when exposed to the required scrutiny, Ms. Bacon's fresh evidence is not reasonably capable of belief. [41] The appellant’s formulation casts too broad a threshold and would encompass all sorts of “never closing revolving door” cases akin to those contemplated by Charron J.A. (as she then was) in Rhingo. On appeal, there is no longer a presumption of innocence. The burden is on the appellant to establish that the fresh evidence is reasonably capable of belief. This involves “a form of credibility assessment” to ascertain whether the fresh evidence should be accepted. If the evidence passes the reasonably capable of belief threshold and meets the other elements of the fresh evidence test, the fresh evidence will be accepted.
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[46] Nonetheless, although due diligence is a factor to consider in the fresh evidence application, it is not a condition precedent to the admission of fresh evidence: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 219. Standing alone, it should not serve to defeat the appellant’s application. . R. v. Hartling
In R. v. Hartling (Ont CA, 2020) the Court of Appeal set out the test for admitting fresh evidence on an appeal:[35] A consideration of the admissibility of fresh evidence on appeal begins with R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. There, at p. 775, the court articulated the following principles:(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, and
(4) It 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. [36] These criteria have been somewhat refined to a three-part inquiry:(1) Is the evidence admissible under the operative rules of evidence;
(2) Is it sufficiently cogent such that it could reasonably have affected the verdict;
(3) What is the explanation for the failure to adduce the evidence and should the explanation affect admissibility? (See: Truscott (Re), 2007 ONCA 575, 226 O.A.C. 200 at para. 92; R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437, at para. 56; also R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 205 and 213). . R. v. Vickers
In R. v. Vickers (Ont CA, 2020) the Court of Appeal reviewed some principles on the admission of fresh evidence on appeal:[35] The parties do not dispute the applicable legal principles. As the party seeking to introduce fresh evidence, the appellant must establish on a balance of probabilities that admission of his proposed evidence is in the interests of justice. The standard to determine whether the evidence should be admitted is set forth in Palmer v. The Queen, [1981] S.C.R. 759, at p. 775. In Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, this court described the exercise of statutory discretion as involving three questions:• Is the proposed evidence admissible under the rules of evidence applicable in criminal trials? [The admissibility requirement]
• Is the proposed evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [The cogency requirement]
• What is the explanation offered for the failure to produce the evidence at trial and how would that explanation affect its admissibility on appeal? [The due diligence inquiry] See also R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 45. . R. v. L.C.
In R. v. L.C. (Ont CA, 2021) the Court of Appeal described the Palmer fresh evidence doctrine as being 'reformulated':[13] This court has broad discretion to receive fresh evidence on appeal where “it considers it in the interests of justice”: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1). The Supreme Court of Canada established the test that governs the admission of fresh evidence in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. This court has since reformulated the Palmer test: R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. The inquiry consists of three questions:1. Is the evidence admissible under the operative rules of evidence? (admissibility criterion)
2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? (cogency criterion)
3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? (due diligence criterion) ....
[15] The cogency criterion consists of three prongs: Truscott, at para. 99. In considering cogency, this court asks the following questions:1. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
2. Is the evidence credible in that it is reasonably capable of belief?
3. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result? . R. v. J.D.
In R. v. J.D. (Ont CA, 2021) the Court of Appeal consider a fresh evidence issue:[38] Under ss. 683(1) of the Criminal Code, an appellate court may receive fresh evidence on appeal when it is in the interests of justice to do so. The burden to establish admissibility is on the applicant. In R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, this court applied the Palmer criteria as restated by this court in R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 502, at para. 92. The three tests are: (1) admissibility – is the evidence admissible under the operative rules of evidence?; (2) cogency – would the evidence reasonably have affected the verdict at trial?; and (3) due diligence – what is the explanation for not introducing the evidence at trial and should that affect its admissibility? . Johnson v. Rajanna
In Johnson v. Rajanna (Ont CA, 2021) the Court of Appeal considered the established test for admitting fresh evidence:[13] R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh evidence on appeal:1. The evidence should not be admitted if, by due diligence, it could have been adduced at trial, but this general principal will not be applied as strictly in criminal cases as in civil cases;
2. The evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
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. . R. v. M.C.
In R. v. M.C. (Ont CA, 2019) the Court of Appeal set out factors to consider when deciding to permit fresh evidence on appeal:Fresh Evidence on Appeal
[64] Appellate courts may receive evidence on an appeal from conviction where the court considers it in the interests of justice to do so. This broad discretion, for which s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides, takes into account an appellant’s interest in avoiding a miscarriage of justice by having the appellate court consider all evidence relevant to the reliability of the conviction. But it also considers the broader societal interest in maintaining the integrity of the criminal justice system by respecting the finality of trial verdicts and acknowledging the respective functions and expertise of trial and appellate courts: R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 64.
[65] A party who proffers evidence on appeal germane to a fact in issue at trial must be able to provide a satisfactory response to three questions:i. Is the evidence admissible under the operative rules of evidence?
ii. Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict?
iii. What explanation, if any, is offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence on appeal? See R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Reeve, at para. 66.
[66] The first requirement – admissibility – is straightforward. The evidence proposed for admission on appeal must satisfy the governing admissibility rules of the law of evidence. This includes the hearsay rule: R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 204, leave to appeal refused, [2016] S.C.C.A. No. 513.
[67] The second requirement – cogency – asks three questions:i. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
ii. Is the evidence credible in that it is reasonably capable of belief?
iii. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result? See Manasseri, at para. 205.
[68] Fresh evidence tendered to challenge a factual finding made at trial or to undermine the credibility of a crucial witness or the reliability of a witness’ testimony must be sufficiently strong to compel the ordering of a new trial, or else it will not be received on appeal: Manasseri, at para. 217, citing R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 49, leave to appeal refused, [2007] S.C.C.A. No. 258. The cogency inquiry requires a qualitative assessment of the proposed evidence, measuring its probative potential considered in the entirety of the evidence admitted at trial and on appeal: Manasseri, at para. 213.
[69] The final component – due diligence – is not a precondition to the reception of fresh evidence on appeal. Due diligence enters play when the requirements of admissibility and cogency have been satisfied. Then, but only then, due diligence becomes a factor to consider in deciding whether “the interests of justice”, especially the need for finality, warrant reception of the evidence: Manasseri, at paras. 206, 218-220; Maciel, at para. 50; Reeve, at para. 68.
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