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Criminal - Appeals - Fresh Law

. 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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