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Criminal - Appeals - Fresh Evidence (2)

. 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 Put simply, one mitigating collateral fact would have been replaced by another mitigating collateral fact of comparable impact.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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Last modified: 15-12-23
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