Simon's Legal Resources

Criminal - Appeals - Fresh Evidence (4)

. R. v. Isaac

In R. v. Isaac (Ont CA, 2026) the Ontario Court of Appeal considered a criminal appellate motion, here seeking "production of records from the Toronto Police Service (the “TPS”) and the Ontario Provincial Police (the “OPP”), pursuant to s. 683(1)(a) of the Criminal Code", which might "assist him in preparing a possible fresh evidence motion in the appeal of his conviction for second-degree murder":

[24] Pursuant to s. 683(1)(a) of the Criminal Code, this court may order the production of “any writing, exhibit or other thing connected with the proceedings” if the court “considers it in the interests of justice” to do so. In R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25, this court held that a two-part test is to be applied where a party seeks production of records in aid of a fresh evidence motion. The applicant must demonstrate that:

. There is a reasonable possibility that the production of the records could assist on the motion to produce fresh evidence; and

. There is a reasonable possibility that the records at issue may be received as fresh evidence on appeal.

[25] In R. v. Jaser, 2023 ONCA 24, at paras. 17 and 30, this court modified the test enunciated in Trotta to account for the privacy interests of a third party in records for which production is sought, incorporating the factors relevant to a third-party records motion. Where third-party privacy interests are engaged, a court considering a production order under s. 683 must weigh the potential probative value of the evidence sought along with any third-party privacy interests in assessing whether it is in the interests of justice to order production. In conducting this weighing, the court should also consider other tailored means of protecting privacy interests, such as redactions or conditions on disclosure.