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Review - Fresh Law - Criminal. R. v. Williams
In R. v. Williams (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here citing the 'fresh law' test:[13] ..... He acknowledges that this issue was not raised at trial but argues that this is one of the exceptions in which an appellant should be permitted to raise a new issue on appeal, as set out by this court in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43, leave to appeal refused, [2016] S.C.C.A. No. 432.
[14] In response, the Crown’s position is that the appellant has not met his onus of satisfying the Reid test, which both parties accept as the governing authority. In particular, the Crown argues that the evidentiary record is not sufficient to make a s. 8 determination with respect to the search. Because the reasonableness of the drug search was not an issue at trial, the Crown did not pursue the basis for the search in any detail. For example, there was no exploration either in chief or cross-examination as to whether there could have been other reasons for the search, such as safety concerns.
[15] The onus is on the party seeking to raise a new issue on appeal: Reid, at para. 42. They must satisfy three preconditions:1. The evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;
2. The failure to raise the issue at trial must not be due to tactical reasons; and
3. The court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: Reid, at para. 43. [16] All three of these conditions must be met. . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal cites an exception to the 'fresh law' on appeal prohibition, here grounded in miscarriage of justice doctrine:(i) The Testimony and Findings Are a Proper New Issue
[95] Appellate courts may become aware of new issues throughout the appeal process, including after the hearing. They have discretion to raise these issues where failing to do so would risk an injustice, including where doing so requires receiving fresh evidence. Before doing so, they must preliminarily assess the new issue and determine that there is good reason to believe that failing to raise it would risk an injustice. This test preserves and safeguards appellate courts’ impartiality: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 40-48, 55; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 30; R. v. Irwin (1977), 1977 CanLII 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.), at p. 3.
[96] The risk of a miscarriage of justice satisfies this test: Mian, at para. 44. As my former colleague Stephen Goudge observed in his report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) (“Goudge Report”), reliance on unreliable expert evidence can risk a miscarriage of justice: vol. 3, at p. 470; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 12.
[97] Appellate courts evaluating whether to raise a new issue must also consider whether the record is sufficient to resolve the issue and ensure procedural fairness: Mian, at paras. 41, 51-52. They ensure procedural fairness by properly notifying the parties of the issue as soon as is practically possible and providing them an opportunity to make submissions. The court can determine the form of those submissions, but parties also have a role to play and may request oral submissions, further written argument, or both. The court must consider any such request if made: Mian, at paras. 54, 57-59. . R. v. Zacharias
In R. v. Zacharias (SCC, 2023) the Supreme Court of Canada considered fresh Charter law on appeals:[23] This Court has made clear that such new issues should be entertained only in “exceptional circumstances” (R. v. J.F., 2022 SCC 17, at para. 40, citing Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3). Nevertheless, we conclude that the issue of whether police conduct in this case breached s. 8 or 9 of the Charter should be considered by this Court. The legal question on which the Court of Appeal diverged requires this Court to consider the dissenting judge’s path of reasoning.
[24] Like Khullar J.A., we are of the view that addressing this issue would not result in unfairness to the Crown. The appellant, in making his argument, alleges “nothing further other than the fact that [the arrests, searches, and detention in question] occurred” (A.F., at para. 70). The Crown does not dispute that these events occurred. At the voir dire, the Crown adduced evidence from the arresting officer Constable MacPhail, the backup officer, and the dog handler. In the Court of Appeal, the Crown did not suggest it would have called any further evidence, except in relation to the strip search, which is no longer at issue (C.A. reasons, at para. 48). With respect to the legal issues before this Court, the Crown has had ample opportunity to respond to the positions taken in the reasons for the majority and the dissent in the Court of Appeal. . R. v. Townsend
In R. v. Townsend (Ont CA, 2023) the Court of Appeal applies a combination of fresh law and fresh evidence doctrine:[13] The focus of the appellant’s submissions was on the first Grant factor – the seriousness of the breach. The appellant raises two additional s. 8 arguments that were not advanced at trial in support of his contention that the police acted in bad faith. He submits that the initial seizure of the computer from the appellant’s mother was unlawful and that the police unjustifiably delayed filing a report to justice. While the circumstances of the seizure were the subject of a brief cross-examination of one of the police officers, these alleged breaches were not relied upon by trial counsel for the appellant as either Charter violations or factors to be considered in determining the seriousness of the breach.
[14] This court is not able to take these new arguments into consideration when assessing the trial judge’s analysis of the first Grant factor. The trial judge cannot be faulted for not considering an argument that was never advanced. Moreover, the Crown at trial had no notice of these claims, and consequently led no evidence and made no argument in defence of the seizure from the mother’s vehicle and of the filing of the report to justice. Thus, this court does not have the evidentiary record needed to properly adjudicate these new claims or to assess their impact on the seriousness of the breach. Therefore, we do not give effect to these arguments. . R. v. Tello
In R. v. Tello (Ont CA, 2023) the Court of Appeal considered a fresh law test:[69] As a general rule, appellate courts will not permit new issues to be raised for the first time on appeal, subject to certain exceptions: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 37. In Reid, the appellant sought, for the first time on appeal, to impugn the constitutional validity of part of the Garofoli procedure. The appellant was unsuccessful. Watt J.A. held, that a party wishing to raise an issue for the first time on appeal must satisfy the following criteria:(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;
(ii) the failure to raise the issue at trial must not be due to tactical reasons; and
(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal. Reid, at para. 43, citing R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at p. 927, per L'Heureux-Dubé J. (dissenting).
[70] Ultimately, the decision to permit a new issue to be raised on appeal is discretionary, “informed by the interests of justice as they affect all parties”: Reid, at para. 44; and Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Finality in criminal proceedings is an important element in the equation. . R. v. Davis
In R. v. Davis (Ont CA, 2023) the Court of Appeal considers the 'fresh law' doctrine, here in a criminal appeal context:(1) It is not in the interests of justice in the circumstances of this case for this issue to be raised for the first time at the second appeal.
[22] The Crown did not raise the “obtained in a manner” issue as a ground of appeal before the appeal judge, and it is not in the interests of justice to permit it to be done for the first time now. As I have described, the Crown explicitly advised the appeal judge in its summary conviction appeal factum that it was not raising the “obtained in a manner” issue, which it called the “nexus” issue, because the trial Crown had not contested this issue before the trial judge.
....
[24] More importantly, it would be more unfair to Mr. Davis to permit the Crown to raise this issue for the first time during its second appeal. Absent exceptional circumstances, a party is not permitted to raise issues for the first time on its initial appeal. This is in part because of the interest in finality in criminal cases and the expectation that criminal cases will be disposed of fairly and fully at first instance after all appropriate arguments are raised at trial: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal dismissed, [2017] S.C.C.A. No. 37214. These policy considerations are amplified, in my view, where a party, given leave to enjoy the exceptional privilege of a second appeal, seeks to raise a new ground of appeal relating to a matter that was not even litigated at trial.
[25] I see no basis for granting an exception to this sage rule in the circumstances of this case, even though the evidentiary record before us is sufficient to permit adjudication of the “obtained in a manner” issue. The “obtained in a manner” issue was not litigated at trial, and the Crown made a tactical decision, based on fairness considerations, not to attempt to raise that issue for the first time before the appeal judge. Having made a knowing and tactical decision not to raise this ground of appeal during the first appeal, the Crown is now poorly placed to argue that the failure by this court to address this issue would result in a miscarriage of justice. In my view, the most compelling risk of a miscarriage of justice that now arises is the prospect that Mr. Davis, having been acquitted in the face of the issues contested at trial and having prevailed on the issues raised on a first appeal, could face a new trial after a second appeal based on a new Crown argument invoked after those proceedings have been concluded.
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