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Evidence - Practice. Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC [interlocutory evidence appeals]
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal distinguishes the appealability of interlocutory evidence orders made pre-trial, from those made during a trial - the latter of which are not appealable:[11] As a general rule, this Court does not entertain an appeal from an evidentiary ruling made during a trial, regardless of whether the motion is formal or informal, rendered orally or in writing (Munchkin, Inc. v. Angelcare Canada Inc., 2021 FCA 169, Buffalo v. The Queen, 2001 FCA 282, at paras. 2-3 [Buffalo]). While paragraph 27(1)(c) of the Federal Courts Act, RSC 1985 c F-7 creates a right of appeal from interlocutory orders of the Federal Court, different rules apply where the ruling arises in the course of a trial. In these circumstances, appeals are available only under exceptional circumstances, as required by the interests of justice (Sawridge Band v. Canada, 2006 FCA 228, at paras. 26-28, Sopinka, at 424). This could arise where the admissibility of the evidence would cause significant prejudice to the parties or where a final disposition on the evidentiary question may have a dramatic bearing on the length of the trial. The conjunction of these two factors – prejudice and the due administration of justice will rarely occur. That is why, for example, there are statutory guarantees of rights of appeal of evidentiary rulings in some cases. Section 37.1 of the Canada Evidence Act, RSC 1985 c C-5 , for example, provides an immediate right of appeal to the appellate court in matters involving informer privilege (Basis v. the Queen, 2009 SCC 52, at para. 19).
[12] Consistent with this framework, pending appeals of interlocutory orders should be fully disposed of before trial (Sopinka, at paras. 77-78), and once commenced, the trial should not be interrupted by interlocutory appeals (Buffalo, at para. 3). Once a final judgment is issued, a party disagreeing with the judge’s treatment of the evidence in the reasons may bring their challenge by argument in their memorandum in response to an appeal (Froom v. Canada (Minister of Justice), 2004 FCA 352, at para. 11). . 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court noted cases on 'joint document books' during trial:[44] The Appellants’ reliance on the Court of Appeal decisions in Bruno v. Dacosta, 2020 ONCA 602 and Girao v. Cunningham, 2020 ONCA 260 is misplaced. In those decisions, the Court of Appeal outlined what it described as “trial practice notes” to provide guidance for handling joint document books at trial. In this matter, the Documents did not form part of a joint document book. The parties did not proceed on the assumption they were being admitted on consent. Rather, as set out above, they were admitted after witnesses identified the Documents, testified to receiving them and in some cases to paying the relevant invoices. . R. v. R.A.
In R. v. R.A. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here focussing on the hearsay exception of 'spontaneous utterances'.
Here the court comments on the practice issue of holding an evidentiary voir dire in cases of hearsay, and prior consistent statements:[35] To begin, I recognize that the admissibility of the text message was a difficult evidentiary issue for the trial judge. It was both hearsay and a prior consistent statement because the complainant testified. The trial judge had to proceed cautiously with this evidence, and the parties should not have waited until their closing submissions to raise the issues of admissibility and use. Submissions should have been made when the text message was first introduced as this would have focused the attention of the parties and the judge on the test for admissibility and the permissible and impermissible uses of the message: R. v. Schneider, 2022 SCC 34, 418 C.C.C. (3d) 137, at para. 37; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664; R. v. Sylvain, 2014 ABCA 153, 310 C.C.C. (3d) 1, at paras. 27-29. This court has reminded counsel and trial judges that because hearsay and prior consistent statements are presumptively inadmissible and the exceptions to this evidence are sometimes difficult to apply, it is important to address the basis for admissibility of such statements when they are first introduced: R. v. A.V., 2024 ONCA 339, 437 C.C.C.(3d) 316, at paras. 34-36; R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45, leave to appeal refused, [2020] S.C.C.A. No. 87. It is regrettable that this was not done in this case. . R. v. Whiston
In R. v. Whiston (Ont CA, 2023) the Court of Appeal made a useful practice point about repeated efforts to admit the same evidence:[2] Central to the issues at trial, and on this appeal, is the admission of certain text messages made between the complainant and the appellant, both before and after the alleged sexual assault. The appellant raises two issues. One is that the prosecution made four attempts to get the text messages admitted – three before the trial started and one at the trial – and only succeeded on the fourth attempt. The other is that the text messages ought not to have been admitted and relied upon because they were prior consistent statements.
[3] We accept the appellant’s point that there should not be multiple motions regarding the same evidence. This is a basic proposition that applies both to the prosecution and to the defence, but perhaps especially to the prosecution.
[4] That said, there is no absolute prohibition against multiple attempts to introduce the same evidence. It is up to the judge hearing subsequent motions, relating to the same evidence, to decide whether they should be entertained. In this case, the first three attempts were rejected by the court as a result of procedural deficiencies. In addition, the first two did not rule on the merits of the admissibility request. Further, the first two attempts were dismissed on the express understanding that the prosecution could renew the application on further and better material.
[5] The decision to allow or reject subsequent motions on the same evidence is a matter for the discretion of the trial judge. It is recognized that prosecutions are fluid and that a ruling made at one point may need to be revisited at another point if circumstances change: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at para. 28. In this case, the trial judge viewed the decision in R. v. Langan, 2020 SCC 33 as changing the evidentiary landscape and warranting a revisiting of the admissibility of the evidence. We do not see any basis to interfere with the trial judge’s exercise of his discretion. The appearance of fairness is engaged as much by allowing the admission of probative evidence as it is by the multiplicity of attempts to do so.
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