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Criminal - Appeals - Fresh Evidence (2). R. v. Prasad
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal dismissed appellant motions to admit the fresh evidence and his motion to reopen the appeal.
Here the court sets out and applies "principles governing the reception of fresh evidence on appeal":[85] The governing Palmer test for the admission of fresh evidence on appeal requires Mr. Prasad to establish that the evidence is admissible as ordinary evidence, that it is cogent, and that the party applying exercised due diligence.[18] In Truscott (re),[19] at para. 69, this court gave some additional form to Palmer’s cogency criterion by separating out relevance, credibility, and probative value for analytical purposes. I have already addressed the first inquiry – whether the evidence is admissible as ordinary evidence – and concluded it is not. I now address cogency and due diligence.
[86] Cogency is a qualitative analysis; it assesses the probative potential of the proposed fresh evidence in the context of all the trial evidence and whether it would have had the potential to change the trial result: Truscott, at para. 100. To repeat my view, the expert evidence is not cogent. It does not specify any actual errors in the transcription of the audio.
[87] Due diligence stipulates that the fresh evidence should not be admitted if it could have been adduced at trial, though this criterion will not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice: Palmer, at para. 23.
[88] Mr. Prasad could have proffered what is now the fresh evidence at the trial. The intelligibility of the audio was a key issue at the trial. But defence counsel at trial (not appeal counsel) swears that he was unaware of the science on “the issues of the inaudibility of the audios and the neuroscience or neuropsychology regarding audio perception or on the effect of being primed with knowledge of the nature of the case and related listener bias issues.” He adds that the failure to adduce the evidence “was not a tactical decision on my part.” I would not dispute the good faith of defence counsel at trial, but the appeal then runs squarely into Charron J.A.’s words (as she then was) in R. v. Rhingo,[20] at p. 214: “The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.”
[89] Even though due diligence is a criterion that should not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice, it remains a factor: Palmer, at para. 23, R. v. Hay,[21] at para. 64; R. v. Manasseri,[22] at paras. 206, 219-222, R. v. Smithen-Davis (2020),[23] per Watt J.A., at para 60.
[90] I would find that the fresh evidence does not meet the Palmer criteria for admission on appeal. . R. v. Colley
In R. v. Colley (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal in a child murder.
Here the court considered a fresh evidence request:(5) The Fresh Evidence is Admissible
[60] The power of an appellate court to admit fresh evidence is found in s. 683(1)(d) of the Criminal Code:683 (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,
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(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness. [Emphasis added.] [61] The respondent acknowledges that it is “in the interests of justice” that we examine the fresh evidence, but submits that the evidence should not be admitted.
[62] The principles that apply to the type of fresh evidence tendered on this appeal have been discussed numerous times in this court’s jurisprudence, most recently in R. v. Jaser, 2024 ONCA 448, a case that also involved a reasonable apprehension of bias claim.
[63] In Jaser, at paras. 302-305, the court discussed the two categories of fresh evidence most often adduced under s. 683(1)(d). The first category is evidence that relates to a factual or legal determination made at trial, including rulings or the ultimate determination of the trier of fact: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 186-171. In these circumstances, the exercise of discretion to admit the fresh evidence is governed by the principles in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Where fresh evidence is admitted on this basis, the conviction must be set aside: R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480.
[64] The second category of fresh evidence is not adduced for the purpose of challenging a factual or legal issue at trial; it is focused on the validity or fairness of the trial process. This court has admitted evidence in this category in different circumstances, including cases involving the exclusion of the accused from their trial in violation of s. 650(1) of the Criminal Code (R. v. S.M., 2022 ONCA 765, 164 O.R. (3d) 561; R. v. Mills, 2024 ONCA 204), and claims of reasonable apprehension of bias (R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 675; R. v. Cowan, 2022 ONCA 432, 162 O.R. (3d) 321; and Jaser). The Palmer criteria are not applicable in this context. When fresh evidence is admitted on this basis, it does not automatically trigger a new trial. Instead, if admitted, it must then be determined whether the substantive claims, in this case a reasonable apprehension of bias and an infringement of s. 650(1), have been established: Jaser, at paras. 304-305.
[65] The fresh evidence tendered on appeal falls into the second category. There is no principled basis to refuse its admission. It is relevant to important procedural issues at trial. The evidence is in a proper form and is compliant with the rules of evidence. There is no suggestion that the evidence is unreliable. The responding party had the full opportunity to conduct cross-examinations. The respondent chose not to adduce evidence in response. The factual assertions are not disputed.
[66] The fresh evidence is admitted. . R. v. Osborne
In R. v. Osborne (Ont CA, 2024) the Ontario Court of Appeal allowed fresh evidence "where an appellant seeks to demonstrate that the trial process was unfair":[43] While the Crown objects to the transcript being admitted as fresh evidence, in our view, it is in the interests of justice and necessary to receive it to properly address this ground of appeal, having regard to the appellant’s interests in fully pursuing available remedies: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44; R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 100. As Watt J.A. explained in R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 157, leave to appeal refused, [2017] S.C.C.A. No. 17, where an appellant seeks to demonstrate that the trial process was unfair, fresh evidence is received to establish a fact which caused a miscarriage of justice. We are of the view that it is necessary and in the interests of justice to receive and consider the transcript of Ms. Hall’s guilty plea proceedings for this purpose and would therefore admit it. . R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal considered the admission of fresh evidence, here in a criminal appeal where the underlying appeal issue was 'fairness':(b) The fresh evidence is admissible
[302] As noted above, the Crown does not oppose the admission of the fresh evidence. The power of an appellate court to admit fresh evidence derives from s. 683(1)(d) of the Criminal Code:For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, ... receive the evidence, if tendered, or any witness, including the appellant, who is a competent but not compellable witness. [303] In R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 168-71, the court observed that applications to admit fresh evidence are most commonly invoked when an appellant wishes for an appellate court to consider additional material that is relevant to a factual or legal determination made at trial. In those circumstances, the exercise of discretion to admit the fresh evidence is governed by the criteria established in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Where fresh evidence is admitted on this basis, the conviction must be set aside: R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480.
[304] However, where the proffered fresh evidence is not adduced for the purpose of challenging a factual or legal issue at trial, but is instead adduced to cast light on the validity or fairness of the trial process, the Palmer criteria do not necessarily apply. Examples of this use of fresh evidence include allegations of ineffective assistance of counsel (R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.); R. v. Blake, 2023 ONCA 220, 166 O.R. (3d) 641), conflicts of interest (R. v. Marrone, 2023 ONCA 742, 431 C.C.C. (3d) 330), the exclusion of the accused from their trial contrary to s. 650 of the Criminal Code (R. v. S.M., 2022 ONCA 765, 164 O.R. (3d) 561), and claims of a reasonable apprehension of bias (R. v. Cowan, 2022 ONCA 432, 162 O.R. (3d) 321). Similarly, the Palmer criteria are not applicable in the circumstances before us. . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal considers a fresh evidence issue, here where an expert witness' testimony fell into serious questioning:(ii) The Testimony and Findings Are Admissible as Fresh Evidence
[106] I next consider whether to admit Dr. Woodside’s Nettleton testimony and Justice Bird’s findings concerning that testimony as fresh evidence. I apply the fresh evidence test because this court’s decisions establish that it applies to both the testimony and the findings. In R. v. Abbey, this court held that an expert’s testimony in another case may be admitted as fresh evidence, including where, as here, it is described in a judicial decision: 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 37-40, 45.[6] Likewise, in its additional submissions the Crown cited R. v. Ghorvei, which held that the fresh evidence test governs whether an appellate court can consider judicial findings of fact concerning a witness that are contained in a decision in a different case: (1999), 49 O.R. (3d) 63 (C.A.), at paras. 22-37. However, Justice Bird’s legal analysis in Nettleton is not subject to the fresh evidence test because it is not evidence. Rather, it is persuasive legal authority: see, e.g., Karatzoglou v. Commisso, 2023 ONCA 295 (in Chambers), at paras. 20, 22.
[107] Fresh evidence is admissible in dangerous offender appeals if it meets the following five requirements:1. Due diligence: The evidence could not have been adduced at the hearing through due diligence;
2. Relevance: The evidence bears on a decisive or potentially decisive issue;
3. Admissibility: The evidence is admissible under the rules of evidence;
4. Credibility: The evidence is reasonably capable of belief; and,
5. Impact: If believed, the evidence would reasonably be expected to affect the result when considered with the other evidence. See R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 70; Truscott, at para. 92. . R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a conviction for child luring [CCC 172.1(1)(a,b)] and "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)]. Here the court considers a criminal 'fresh evidence' application [under CCC 683(1)]:(3) The Fresh Evidence Should be Admitted
[86] The potential availability of a conditional sentence bears directly on the admissibility of the fresh evidence.
[87] The appellant seeks to introduce an affidavit from himself, dated May 26, 2023, that outlines developments in his life since the trial judge imposed his sentence. He describes his completion of an engineering degree and that he has recently co-founded his own business. Most notably he describes the recent onset of significant health problems including severe back pain and urinary problems that required surgery. As part of his recovery, the appellant walks with a cane, and requires ongoing therapy.
[88] This court has broad discretion under s. 683(1) of the Code to admit fresh evidence on appeal where “it considers it in the interests of justice”. In a sentence appeal, s. 687(1) of the Code permits the court to receive evidence “it thinks fit to require or to receive”. Admissibility is governed by the test outlined in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 22. The Supreme Court in Lévesque articulated Palmer criteria in the following manner, at para. 35:1. 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 relating to the sentence.
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. [89] I am satisfied that the Palmer criteria are met. There can be little dispute about the first three factors. With respect to the fourth factor, although some of the fresh evidence is confirmatory of the positive path the appellant’s life was expected to take based on the information available at the sentencing hearing, the evidence of health issues is completely new. This court has recognized that the development of significant health issues following the imposition of a sentence can, in some cases, make incarceration harsher than anticipated at the time of sentencing: see R. v. Ukwuaba, 2021 ONCA 152, at para. 11. While the development of significant health issues post-sentence may not always warrant appellate interference with an offender’s sentence, in this case there is a real risk that the appellant’s physical limitations will heighten the harms of incarceration that are often experienced by youthful offenders: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (5th) 84, at para. 106. Even in cases of sexual offences against children a health issue can be an exceptional reason why a conditional sentence, rather than a custodial one, would be appropriate: M.M., at para. 16; B.M., at para. 2.
[90] Accordingly, it can reasonably be expected that this evidence, taken together with the other evidence, would have affected the determination of whether a custodial sentence would be considered fit, or given the legal availability of a conditional sentence, whether a conditional sentence was fit. I would therefore grant the appellant’s fresh evidence application and consider the affidavit when ascertaining the fit sentence as well as in the comparison of the mandatory minimum sentence to the fit sentence. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considers a Criminal Code codification [CCC 683(1)(d)] of the fresh evidence doctrine:[19] Section 683(1)(d) of the Criminal Code authorizes the admission of fresh evidence on appeal where it is in the interests of justice to do so. The test to admit fresh evidence was set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. It is as follows:(a) the evidence could not, by the exercise of due diligence, have been available for the trial;
(b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
(c) the evidence is credible in the sense that it is reasonably capable of belief; and
(d) the evidence is such that, if believed, it could have affected the result at trial. See also Barendregt v. Grebliunas, 2022 SCC 22, 468 D.L.R. (4th) 1, at para. 29. [20] According to the appellant, the proposed fresh evidence is admissible. It is relevant to the appellant’s subjective state of mind, material to the issue of mens rea, and not excluded by any evidentiary rule, relying on the standard set out in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 46, leave to appeal refused, [2012] S.C.C.A. No. 8. . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered just what 'fresh evidence' is, when contrasted with 'collateral consequences' as they bear on criminal sentencing:[13] In support of his application for leave to appeal his sentence, Mr. Casarsa seeks to admit fresh evidence, namely, that as a result of his convictions he lost his employment. He argues that this is a material change because evidence was presented at the trial, and accepted by the trial judge, that his job would still be there after he served his sentence.
[14] We are not satisfied that this evidence qualifies for admission as “fresh evidence”. In order to be admissible as fresh evidence 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”: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7, citing Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In our view, proof of this collateral consequence – Mr. Casarsa’s job loss – could not reasonably have affected the result. As the Crown points out, the trial judge treated Mr. Casara’s work history as a “significant” mitigating circumstance and treated the evidence before him that Mr. Casarsa’s employment was secure as a mitigating factor. Removing evidence that his job was secure and replacing it with proof that he in fact lost his job would not have made a material difference in the sentence imposed, particularly in view of his evidence that he has now secured part-time employment. Put simply, one mitigating collateral fact would have been replaced by another mitigating collateral fact of comparable impact. . R. v. Marrone
In R. v. Marrone (Ont CA, 2023) the Court of Appeal considers the fresh evidence test where the issue revolves around an allegation that "trial counsel’s representation resulted in a miscarriage of justice":[35] Where an allegation is made that trial counsel’s representation resulted in a miscarriage of justice “the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim”: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-170; R. v. McDonald, 2022 ONCA 574, 416 C.C.C. (3d) 66, at para. 43. . R. v. Townsend
In R. v. Townsend (Ont CA, 2023) the Court of Appeal applies a combination of fresh law and fresh evidence doctrine:[13] The focus of the appellant’s submissions was on the first Grant factor – the seriousness of the breach. The appellant raises two additional s. 8 arguments that were not advanced at trial in support of his contention that the police acted in bad faith. He submits that the initial seizure of the computer from the appellant’s mother was unlawful and that the police unjustifiably delayed filing a report to justice. While the circumstances of the seizure were the subject of a brief cross-examination of one of the police officers, these alleged breaches were not relied upon by trial counsel for the appellant as either Charter violations or factors to be considered in determining the seriousness of the breach.
[14] This court is not able to take these new arguments into consideration when assessing the trial judge’s analysis of the first Grant factor. The trial judge cannot be faulted for not considering an argument that was never advanced. Moreover, the Crown at trial had no notice of these claims, and consequently led no evidence and made no argument in defence of the seizure from the mother’s vehicle and of the filing of the report to justice. Thus, this court does not have the evidentiary record needed to properly adjudicate these new claims or to assess their impact on the seriousness of the breach. Therefore, we do not give effect to these arguments. . R. v. Lloyd
In R. v. Lloyd (Ont CA, 2023) the Court of Appeal considers a fresh evidence motion [under CCC 683 and Criminal Rules 27(3)], here in a second summary conviction appeal (here, a Crown appeal):[8] In support of its appeal, the Crown seeks to adduce the Digital Court Recording (“DCR”) of the relevant portions of the complainant’s evidence.
[9] Rule 27(3) of the Criminal Appeal Rules requires a motion for leave to introduce fresh evidence where a party intends to ask the court to consider admitting fresh evidence under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46. The audio of trial proceedings has been admitted to resolve issues on appeals in other cases: JVJ Consulting Inc. v. Barnell, 2017 ONCA 937 and R. v. Orange, 2021 ONCA 99, at para. 3.
[10] Assuming the DCR is fresh evidence, it is in the interests of justice to admit the DCR to address what the complainant said. The DCR is relevant to the main issue on appeal. Moreover, the trial transcript demonstrates that the trial judge listened to portions of the DCR relevant to the main issue raised on appeal.
[11] For these reasons, the DCR is admitted and placed under seal.
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