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Appeals - Fresh Evidence (2)

. R. v. McDonald

In R. v. McDonald (Ont CA, 2022) the Court of Appeal cites an exception to the Palmer fresh evidence test:
[43] As Doherty J.A. explained in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-70, the test articulated in R v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, does not necessarily apply where fresh evidence is offered for a different purpose such as a challenge based on ineffective assistance of counsel. A full and fair assessment of an appellant’s claim in such circumstances requires evidence. Thus, “[w]here an appellant contends that trial counsel’s conduct resulted in a miscarriage of justice, the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim.”
. Hirtle v. College of Nurses of Ontario

In Hirtle v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court considered a motion for fresh evidence in the context of a procedural fairness argument:
[36] The College moves to adduce evidence on this appeal as a result of the appellant’s position that the Panel erred in providing him with inadequate assistance as a self-represented party. The proposed further evidence relates to the steps taken by the Discipline Committee and others at the College to provide the appellant with procedural assistance. Specifically, the College puts forward evidence regarding steps that were taken before and during the hearing that do not form part of the appeal record.

[37] Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. E-19, the court may receive further evidence on an appeal to enable the court to determine the appeal.

[38] The court will permit evidence supplementing the appeal record where it relates to an issue in the appeal regarding procedural fairness: Moynes v. Public Accountants Council (Ontario), [2001] O.J. No. 2735 (Div. Ct.), at para. 13; 1117387 Ontario Inc. v. National Trust Co., 2010 ONCA 340, 262 O.A.C. 118, at paras. 40-41; Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Ltd. Partnership, 2008 ONCA 463, 90 O.R. (3d) 561, at paras. 42-44; R. v. Leno, 2021 BCCA 200, at paras. 8, 27-29, 68-69.
. Lash v. Lash Point Association Corp.

In Lash v. Lash Point Association Corp. (Ont CA, 2022) the Court of Appeal considered the test for fresh evidence:
[30] An appellate court may exercise its discretion to admit fresh evidence when (1) the tendered evidence is credible; (2) it could not have been obtained by the exercise of reasonable diligence prior to trial; and (3) the evidence, if admitted, will likely be conclusive of an issue in the appeal: Sengmueller v. Sengmueller (1994) 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). Where, however, the evidence did not exist at the time of trial, the evidence will only be admitted where it is necessary to deal fairly with the issues on appeal and where to decline to admit it would lead to a substantial injustice in result: Sengmueller, at p. 23.
. Billimoria v. Mistry

In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal allows a fresh law issue:
[24] Appellate courts will generally not entertain new issues on appeal, because of the unfairness of requiring a party to argue an issue on appeal that it had no chance to adduce evidence on at trial: Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, 5 M.P.L.R. (6th) 174, at para. 9. The burden is on the appellant to persuade the court that all the facts necessary to address the new issue are already before the court, and the decision as to whether to grant leave to allow a new argument is a discretionary decision to be guided by balancing the interests of justice: Kaiman v. Graham, 2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18.

[25] While the effect of s. 51 of the Land Titles Act was not raised at trial by different counsel for the respondents, this is a legal issue which does not depend on findings of fact, nor is there any suggestion that prior counsel failed to raise it for tactical reasons or that the interests of justice weigh in favour of not considering it. As such, and with the consent of the appellant, the respondents have satisfied their burden and we exercise our discretion to allow this issue to be raised on appeal: Kaiman.
. R. v. I.W.

In R. v. I.W. (Ont CA, 2022) the Court of Appeal considered an issue of fresh evidence in a criminal case:
[62] When determining whether to admit fresh evidence on appeal, the court must consider whether the “interests of justice” warrant reception, based on these questions from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775:
i.) By due diligence, could the evidence have been adduced at trial?

ii.) Is the evidence relevant in the sense that it bears on a decisive or potentially decisive issue?

iii.) Is the evidence credible in the sense that it is reasonably capable of belief?

iv.) Is the evidence such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result?
[63] The Palmer criteria encompass three components: admissibility, cogency, and due diligence: Truscott (Re), 2007 ONCA 575, 83 O.R. (3d) 272, at para. 93. The due diligence component becomes important if the admissibility and cogency components are met: Truscott (Re), at para. 93. Although the absence of an adequate explanation for not producing material at trial will not necessarily lead to the exclusion of the evidence on appeal, the finality of trial verdicts would be rendered illusory and the integrity of the trial process undermined if evidence is routinely admitted on appeal that could have been adduced at trial: Truscott (Re), at paras. 101-102.


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