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Criminal - Appeals - Fresh Evidence (3). R. v. Maadani
In R. v. Maadani (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for second degree murder where the defendant argued self-defence.
Here the court considers the test for fresh evidence an appeal, with afterthoughts on the separate elements of the test at para 62-71:The test for admitting fresh evidence
[21] Fresh evidence may be received on appeal where the court considers it in the interests of justice to do so: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(d). Plainly, it is not in the interests of justice to uphold a verdict that fresh evidence demonstrates is unreliable. But the interests of justice are not limited to the interests of the accused. The integrity of the judicial process and the importance of finality in judicial proceedings are competing considerations: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411. Thus, the admission of fresh evidence is not routine; it is exceptional: R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509, at paras. 89-90, leave to appeal refused, [2020] S.C.C.A. No. 298.
[22] The principles governing the exercise of the court’s discretion to admit fresh evidence are well established. The court follows the test set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 and further developed in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, which requires 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? ....
Casseus’s evidence is not reasonably capable of belief
[25] The cogency criterion requires the court to make a qualitative assessment of the proposed fresh evidence. As set out in Truscott, at paras. 99-100, 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. [26] It is not contested that the proposed evidence from Casseus is relevant to the appellant’s self-defence claim. The question for the court is whether it is credible – whether it is reasonably capable of belief. That question does not turn on whether the court itself believes the proposed evidence: R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 O.R. (3d) 582 (C.A.), at p. 602. The court does not make the ultimate credibility or reliability findings about the proposed evidence. Nevertheless, in order to determine whether Casseus’s evidence is reasonably capable of belief, the court must carefully evaluate the potential value of his evidence as well his credibility: R. v. Nnane, 2024 ONCA 841, 174 O.R. (3d) 241, at para. 32, appeal as of right filed, [2024] S.C.C.A. No. 468; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50.
....
[41] .... The cogency criteria are conjunctive. Failure at the credibility stage means that the proposed fresh evidence does not satisfy the cogency requirement: Palmer, at p. 776.
[42] I conclude that the interests of justice would not be served by admitting the proposed fresh evidence and ordering a new trial. On the contrary, the interests of justice would be undermined by requiring the Crown to retry the appellant more than six years after the events in question on the basis of the proposed fresh evidence. The motion must be dismissed.
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Addendum
[62] The appellant’s failure to establish that the proposed fresh evidence is not reasonably capable of belief means that it was not necessary to decide whether it could reasonably be expected to have affected the result at trial. Failure on the credibility question also renders it unnecessary to consider the due diligence criterion: whether the explanation offered for the failure to adduce Casseus’ evidence at trial affects its admissibility. I write briefly to address these issues and to emphasize the importance of finality.
Reasonable Capability of Belief
[63] Disagreement about the credibility of the proposed fresh evidence lies at the core of my disagreement with my colleague on whether a new trial is required. In my view, Casseus is an unsavoury witness whose proposed evidence is inconsistent with much of the evidence at trial. The most that can be said in favour of his evidence is that he has no known motive to lie.
[64] I accept that a trier of fact might accept some of his evidence despite its many shortcomings. But the “reasonably capable of belief” standard requires more than a mere possibility that a credulous trier of fact might accept the fresh evidence. If that were the standard for credibility, new trials would be routine. And that would be unacceptable. It would violate the principle of finality, long understood as essential to the integrity of the criminal justice system: R. v. M. (P.S.), at p. 411, per Doherty J.A.; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19; R. v. Bharwani, 2025 SCC 26, at para. 112.
[65] Once a verdict has been entered, the principle of finality weighs against disturbing it, absent legal error. The admission of fresh evidence on appeal is exceptional. Appellate courts must engage in more than minimal scrutiny of fresh evidence, even if, as my colleague rightly says, it is not their role to determine its ultimate credibility or reliability. The evidence must be examined for markers of negative credibility or reliability – markers like an extensive criminal record, a poor memory, and testimony inconsistent with the trial record, all of which are present in this case, and all of which combine to render the evidence not reasonably capable of belief.
[66] The existence of some potential probative value in the proposed fresh evidence does not suffice to warrant its reception on appeal, as Watt J.A. pointed out in R. v. Allen, at para. 108. That is so even though it would obviously be enough to warrant its admission at first instance.
Capacity to Affect the Result
[67] Having concluded that Casseus’s evidence is reasonably capable of belief, my colleague goes on to conclude that it could reasonably be expected to have affected the verdict for two reasons. First, the jury might have believed Casseus’s evidence about who shot first or been left with a reasonable doubt on that question. Second, the jury might have believed his evidence about Kabuya-Ntumba’s earlier expressions of aggression toward the appellant.
[68] The question of who shot first was clearly an important issue at trial. The appellant could have testified that Kabuya-Ntumba shot first, but chose not to do so. He now seeks a new trial based on Casseus’ evidence, which is marred by inconsistencies about whether or the extent to which it was possible for him to have seen the shots. With respect, my colleague’s assertion that Casseus “was in a position to observe what he says he observed” overstates the evidence. There was evidence that Kabuya-Ntumba was the aggressor, but even if the jury were to have found that he shot first, I do not accept that the proposed fresh evidence could reasonably be expected to have affected the verdict.
[69] The appellant fired several shots into the victim, one of which went into his back as he lay on the ground. Casseus’ proposed evidence as to who the aggressor was is not determinative of the reasonableness of the appellant’s response, and in any event Casseus did not see all of the shots.
Due Diligence
[70] Finally, I do not accept that the appellant pursued the evidence with due diligence. The appellant knew who Casseus was and knew that he was present at the shooting. He chose not to pursue his testimony because he assumed that it would not help him. The reasonableness of that assumption in retrospect is irrelevant. The appellant made his choice, and whether or not it is fairly described as a tactical choice he is stuck with it.
[71] In summary, not only is the proposed fresh evidence not reasonably capable of belief, it would not have affected the outcome and was not proffered with due diligence. It is not in the interests of justice to admit it.
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