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Criminal - Appeals - Fresh Evidence (4). R. v. B.B.
In R. v. B.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "incest and sexual interference" where the defendant was "sentenced to six years’ imprisonment and subjected to various ancillary orders, including a lifetime Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) registration order".
The court considers a fresh evidence issue, here in this criminal sex offence context:[65] The test for admitting fresh evidence on appeal is well-established: see Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 45. As summarized in Snyder, at para. 45, citing Truscott, at para. 92, the admissibility inquiry can be distilled into three questions:. Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]
. Is the 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 should that explanation affect its admissibility on appeal? [the due diligence inquiry] [66] As usual in post-trial recantation cases, there is no dispute that the evidence of S.B.’s changed account of the February 19, 2019 sexual assault satisfies the first and third criteria: it is admissible under the rules of evidence, and it was not available at the time of the appellant’s trial. Its admissibility as fresh evidence thus turns on the cogency requirement.
[67] In Truscott, at para. 100, this court described the cogency analysis as follows: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 ... [68] Recantations by a witness can satisfy the cogency requirement in two different ways: either on the basis that the recantation “is reasonably capable of belief and therefore admissible as substantive evidence”, or “in the sense that it can be used to impeach [the witness’s] trial testimony”: R. v. Kassa, 2013 ONCA 140, 296 C.C.C. (3d) 353, at para. 95, leave to appeal refused, [2013] S.C.C.A. No. 283; see also Snyder, at paras. 46, 51.
[69] Here, the appellant is not seeking to have S.B.’s new account admitted as substantive evidence that the man who sexually assaulted her on February 19, 2019 was actually Sam, rather than the appellant. Rather, the appellant only seeks to introduce S.B.’s recantation on the basis that it shows her to be “an incorrigible liar”, and thus casts doubt on the veracity of her trial testimony in which she named him as the perpetrator.
[70] As Doherty J.A. explained in Snyder, at paras. 53-54:A recantation can have impeachment value even if it is not believed. Indeed, a demonstrably false recantation can have impeachment value. I agree with the comment of Commissioner Kaufmann in his report on the Commission of Proceedings Involving Guy Paul Morin (1998), at pp. 1174-5:The focus should not be placed only on the believability of the recantation, but also upon the believability of [the witness’s] original testimony, given the recantation. [Emphasis added.] As observed by Commissioner Kaufmann, the believability of the recantation is not the “only” question when its impeachment value is in issue. That is not to say, however, that the credibility of the recantation is irrelevant. In determining whether the 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. Sometimes, the falsity of the recantation may enhance its potential impeachment value. In other circumstances, a finding that the impeachment is palpably false may neutralize the impeachment potential of the recantation. The impact of the falsity of the recantation on its impeachment value will depend on the totality of the circumstances, including any explanation offered for the recantation and the extent to which the recantation is supported by either the trial evidence or other evidence offered on appeal. ....
[77] The remaining question is whether S.B.’s recantation has sufficient impeachment value to justify admitting it as fresh evidence on appeal. It is not enough that it have “some potential probative value”: Snyder, at para. 50. What matters is whether, considered qualitatively, the evidence that S.B. has now given a new and different version of events that contradicts her trial testimony “could reasonably be expected to have changed the result at trial”: Truscott at para. 100. . 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.
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