Simon's Megalomaniacal Legal Resources

Criminal - Appeals - Fresh Evidence (3)

. R. v. M.H. [cross-examination on fresh evidence]

In R. v. M.H. (Ont CA, 2026) the Ontario Court of Appeal dismisses a Crown motion for directions, here where the issue was fresh (recantation) evidence from a "cognitively impaired" complainant:

[6] As mentioned, the appellant seeks to have the complainant’s out of court recantation admitted as fresh evidence through the appellant’s mother, a third party[2]. The Crown initially sought to cross-examine the complainant. The appellant took the position that this was neither practical nor necessary. The Crown then advised the appellant that it would seek to have the complainant’s police statement admitted through a third party, the police officer who interviewed her. The appellant then asked that the complainant be made available for cross-examination on her police statement. The Crown declined, maintaining that it should be the Crown who conducted any cross-examination of the complainant. Alternatively, the Crown proposed that the parties put both the police statement and recordings containing the recantation before the court in an agreed statement of fact, or through third party affidavits, which the Crown says is what the appellant initially intended. The appellant, who wanted to preserve his ability to cross-examine the complainant, did not agree.

[7] The Crown brought this motion for directions on December 29, 2025. Each party has filed written submissions setting out their respective positions.

[8] The Crown asks that “the proposed fresh evidence be provided to the court without further examination of the very vulnerable complainant”. It relies on r. 27(8) of the Criminal Appeal Rules, which allows an appeal management judge to make directions concerning the dates, manner and order of cross-examinations to ensure that the fresh evidence record is completed expeditiously. The Crown offers several good reasons why the appellant should not be allowed to cross-examine the complainant to advance his fresh evidence application, including that the proposed fresh evidence was apparently obtained in violation of a court order prohibiting communication with the complainant. Further, the Crown relies on this court’s prior direction that “[i]t will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal”: R. v. Sihota, 2009 ONCA 770, 249 C.C.C. (3d) 22, at para. 14. The Crown submits that this direction is particularly important when, as here, the complainant is vulnerable.

[9] The appellant’s primary position is that the Crown should be directed to file an affidavit from the complainant pursuant to r. 27(8)(b) of the Criminal Appeal Rules which permits an appeal management judge to give directions on the “contents of the record on [a] motion”. This order would in effect require the complainant to be made available for cross-examination. In the alternative, the appellant says he is prepared to bring an application under s. 683 of the Criminal Code, R.S.C., 1985, c. C-46, for an order that the complainant attend for cross-examination. Section 683(1) of the Criminal Code provides that:

For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

....

(b) order any witness who would have been a compellable witness at trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose

[10] While cross-examination of the complainant on the proposed fresh evidence may appear to create a fairness issue given the circumstances in which the evidence was collected, the fact remains that the panel hearing the fresh evidence motion may struggle to properly assess that evidence without the benefit of cross‑examination. That is because, even if the appellant is only seeking to admit the fresh evidence for its impeachment value, and not for the truth of its contents, the credibility of the recantation may still be relevant. As this court held in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 54-56, “in determining whether [a] recantation has sufficient impeachment potential to merit its admission on appeal, the appeal court must determine what a trier of fact could reasonably make of the recantation in its assessment of the credibility of that witness’s trial testimony. The credibility of the recantation is relevant to that assessment.”

[11] While there are legitimate arguments for and against permitting the complainant’s cross‑examination, as I will explain, it would not only be premature for me to decide this issue now but likely beyond my authority as a single judge.

[12] Granting the Crown motion and directing that the complainant not be cross-examined would effectively short circuit the normal s. 683(1)(b) process which involves bringing a motion for cross-examination for consideration by a panel comprised of at least three judges of this court. In other words, granting the Crown’s motion at this stage would bar the appellant from bringing a motion that he is otherwise entitled to advance, and which only a panel of this court has the authority to decide. The court must hear submissions and consider whether “there is some reasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will be admissible as fresh evidence”: R. v. Sihota, at para. 14. This includes material having to do with credibility and what use can be made of the complainant’s recantation.

[13] Further, the Criminal Appeal Rules stem from s. 482.1(1) of the Criminal Code which allows a court of appeal to make rules for case management so long as they are not inconsistent with the Criminal Code and other federal statutes. As this court held in R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, at paras. 27-28, while procedural rules may be made under s. 482(3)(d) to carry out the Criminal Code’s provisions relating to appeals, they cannot expand the court’s jurisdiction. In R. v. J.M., this court held that the Criminal Appeal Rules cannot ground a right of appeal which the Criminal Code does not provide. In this case, the rules cannot neutralize the appellant’s existing statutory right under s. 683.

[14] Although an appeal management judge has broad authority under r. 27(8) of the Criminal Appeal Rules, the Criminal Code empowers a panel to make an order for examination of a witness. Accordingly, it would not be appropriate for me, as a single judge, to make an order which effectively directs that a particular witness cannot be examined. Nor am I inclined to make an order, as the appellant urges, that directs the Crown to file an affidavit from the complainant pursuant to r. 27(8)(b) of the Criminal Appeal Rules.

[15] The best course is to dismiss the Crown’s motion and instead set a timetable for the appellant’s s. 683(1)(b) motion for an order compelling the complainant to be examined, if he still wishes to proceed in that way. I will discuss this with counsel at our next appeal management meeting, which they are to schedule with court staff once the appellant confirms that he is indeed bringing such a motion.

. R. v. M.Z. ['ineffective assistance of counsel' context]

In R. v. M.Z. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "two counts of sexual assault, and one count of forcible confinement".

The court considered a fresh evidence issue, here in an 'ineffective assistance of counsel' context:

(i) Fresh Evidence

[10] The appellant seeks to admit fresh evidence on this appeal, which includes his affidavit, trial counsel’s affidavit, and transcripts of the cross-examinations on those affidavits, among other materials.

[11] Fresh evidence can be received on appeal where ineffective assistance of counsel is alleged, if the evidence is adduced to establish whether representation was ineffective and whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at pp. 43-44; R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.).

[12] In this case, the proposed evidence was admitted because ineffective assistance of counsel is alleged, the fresh evidence bears directly on the issue of whether trial counsel was ineffective in his duties to his client, and the Crown consented to the admission of the fresh evidence.

. R. v. Nnane

In R. v. Nnane (Ont CA, 2025) the Ontario Court of Appeal considered the extent of the CCC 683(1)(b)(ii) powers ['Powers of court of appeal']:

[5] Section 683(1)(b)(ii) of the Criminal Code, R.S.C., 1985, c. C-46 authorizes appellate courts to make orders for the examination of witnesses. While the decision to order cross-examination of an affiant on a fresh evidence application is discretionary, there is no question that cross-examination is the norm, including when counsel have submitted affidavits. This happens routinely where ineffective assistance of counsel is raised as a ground of appeal and the appellant’s former trial counsel has submitted an affidavit. ...

. R. v. Sheppard

In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA criminal sentence variation for jury convictions for "sexual interference and invitation to sexual touching".

The court considers fresh evidence, here in a criminal sentencing context:

[109] The test for admitting new evidence on appeal was set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. There are four criteria for admission: due diligence, relevance, credibility, and impact on the result (ibid.; see also R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728). This test applies “whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial” (Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 3). Guided by an overarching concern for the interests of justice, this test strikes a balance between “finality and order in the justice system”, on the one hand, and “reaching a just result in the context of the proceedings”, on the other (paras. 31-32; R. v. Bharwani, 2025 SCC 26, at para. 102).

. 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.

....

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.