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Criminal - Appeals - Fresh Evidence (2). R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a conviction for child luring [CCC 172.1(1)(a,b)] and "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)]. Here the court considers a criminal 'fresh evidence' application [under CCC 683(1)]:(3) The Fresh Evidence Should be Admitted
[86] The potential availability of a conditional sentence bears directly on the admissibility of the fresh evidence.
[87] The appellant seeks to introduce an affidavit from himself, dated May 26, 2023, that outlines developments in his life since the trial judge imposed his sentence. He describes his completion of an engineering degree and that he has recently co-founded his own business. Most notably he describes the recent onset of significant health problems including severe back pain and urinary problems that required surgery. As part of his recovery, the appellant walks with a cane, and requires ongoing therapy.
[88] This court has broad discretion under s. 683(1) of the Code to admit fresh evidence on appeal where “it considers it in the interests of justice”. In a sentence appeal, s. 687(1) of the Code permits the court to receive evidence “it thinks fit to require or to receive”. Admissibility is governed by the test outlined in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 22. The Supreme Court in Lévesque articulated Palmer criteria in the following manner, at para. 35:1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.
3. The evidence must be credible in the sense that it is reasonably capable of belief.
4. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [89] I am satisfied that the Palmer criteria are met. There can be little dispute about the first three factors. With respect to the fourth factor, although some of the fresh evidence is confirmatory of the positive path the appellant’s life was expected to take based on the information available at the sentencing hearing, the evidence of health issues is completely new. This court has recognized that the development of significant health issues following the imposition of a sentence can, in some cases, make incarceration harsher than anticipated at the time of sentencing: see R. v. Ukwuaba, 2021 ONCA 152, at para. 11. While the development of significant health issues post-sentence may not always warrant appellate interference with an offender’s sentence, in this case there is a real risk that the appellant’s physical limitations will heighten the harms of incarceration that are often experienced by youthful offenders: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (5th) 84, at para. 106. Even in cases of sexual offences against children a health issue can be an exceptional reason why a conditional sentence, rather than a custodial one, would be appropriate: M.M., at para. 16; B.M., at para. 2.
[90] Accordingly, it can reasonably be expected that this evidence, taken together with the other evidence, would have affected the determination of whether a custodial sentence would be considered fit, or given the legal availability of a conditional sentence, whether a conditional sentence was fit. I would therefore grant the appellant’s fresh evidence application and consider the affidavit when ascertaining the fit sentence as well as in the comparison of the mandatory minimum sentence to the fit sentence. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considers a Criminal Code codification [CCC 683(1)(d)] of the fresh evidence doctrine:[19] Section 683(1)(d) of the Criminal Code authorizes the admission of fresh evidence on appeal where it is in the interests of justice to do so. The test to admit fresh evidence was set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. It is as follows:(a) the evidence could not, by the exercise of due diligence, have been available for the trial;
(b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
(c) the evidence is credible in the sense that it is reasonably capable of belief; and
(d) the evidence is such that, if believed, it could have affected the result at trial. See also Barendregt v. Grebliunas, 2022 SCC 22, 468 D.L.R. (4th) 1, at para. 29. [20] According to the appellant, the proposed fresh evidence is admissible. It is relevant to the appellant’s subjective state of mind, material to the issue of mens rea, and not excluded by any evidentiary rule, relying on the standard set out in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 46, leave to appeal refused, [2012] S.C.C.A. No. 8. . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered just what 'fresh evidence' is, when contrasted with 'collateral consequences' as they bear on criminal sentencing:[13] In support of his application for leave to appeal his sentence, Mr. Casarsa seeks to admit fresh evidence, namely, that as a result of his convictions he lost his employment. He argues that this is a material change because evidence was presented at the trial, and accepted by the trial judge, that his job would still be there after he served his sentence.
[14] We are not satisfied that this evidence qualifies for admission as “fresh evidence”. In order to be admissible as fresh evidence it must be “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7, citing Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In our view, proof of this collateral consequence – Mr. Casarsa’s job loss – could not reasonably have affected the result. As the Crown points out, the trial judge treated Mr. Casara’s work history as a “significant” mitigating circumstance and treated the evidence before him that Mr. Casarsa’s employment was secure as a mitigating factor. Removing evidence that his job was secure and replacing it with proof that he in fact lost his job would not have made a material difference in the sentence imposed, particularly in view of his evidence that he has now secured part-time employment. Put simply, one mitigating collateral fact would have been replaced by another mitigating collateral fact of comparable impact. . R. v. Marrone
In R. v. Marrone (Ont CA, 2023) the Court of Appeal considers the fresh evidence test where the issue revolves around an allegation that "trial counsel’s representation resulted in a miscarriage of justice":[35] Where an allegation is made that trial counsel’s representation resulted in a miscarriage of justice “the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim”: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-170; R. v. McDonald, 2022 ONCA 574, 416 C.C.C. (3d) 66, at para. 43. . 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. Lloyd
In R. v. Lloyd (Ont CA, 2023) the Court of Appeal considers a fresh evidence motion [under CCC 683 and Criminal Rules 27(3)], here in a second summary conviction appeal (here, a Crown appeal):[8] In support of its appeal, the Crown seeks to adduce the Digital Court Recording (“DCR”) of the relevant portions of the complainant’s evidence.
[9] Rule 27(3) of the Criminal Appeal Rules requires a motion for leave to introduce fresh evidence where a party intends to ask the court to consider admitting fresh evidence under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46. The audio of trial proceedings has been admitted to resolve issues on appeals in other cases: JVJ Consulting Inc. v. Barnell, 2017 ONCA 937 and R. v. Orange, 2021 ONCA 99, at para. 3.
[10] Assuming the DCR is fresh evidence, it is in the interests of justice to admit the DCR to address what the complainant said. The DCR is relevant to the main issue on appeal. Moreover, the trial transcript demonstrates that the trial judge listened to portions of the DCR relevant to the main issue raised on appeal.
[11] For these reasons, the DCR is admitted and placed under seal.
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