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Criminal - Appeals - Powers on Appeal [CCC 686]. R. v. Nowack [Trotta test]
In R. v. Nowack (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appellate motion, here seeking what the court describes as "directions from the court and assistance in the cross-examination of a Toronto Police Services (“TPS”) officer and a civilian information technology employee on affidavits provided during the appeal process to explain the failure to provide disclosure during his trial of the emails of two TPS officers".
Here the court identifies this motion as brought under CCC 683(1)(a) ['Powers of court of appeal' (order for production)]:[18] As we will explain, we reach the conclusion that this is a motion for production under s. 683(1)(a) of the Criminal Code. Therefore, the Trotta test applies. The appellant has not satisfied the court that there is a reasonable possibility that ordering production of the redacted portions of the emails will result in evidence that may be received as fresh evidence on appeal. In other words, we are not satisfied that there is a reasonable possibility that ordering production of the redacted portions of the emails will assist in developing a successful, or even a viable, ground of appeal.
[19] Pursuant to ss. 683(1)(a) and (b) of the Criminal Code, this court may order the production of “any writing, exhibit or other thing connected with the proceedings” and order a witness to be examined where the court “considers it in the interests of justice” to do so. In Trotta, at para. 25, this court held that a two-part test is to be applied where a party seeks production of records and testimonial evidence in aid of a fresh evidence motion. The applicant must demonstrate that:. There is a reasonable possibility that the order for production or testimony could assist on the motion to produce fresh evidence; and
. There is a reasonable possibility that the order for production or testimony will result in evidence that may be received as fresh evidence on appeal – i.e., that it will meet the fresh evidence admissibility test. [20] In the context of this appeal, the second branch of the test from Trotta must be read in light of this court’s subsequent decision in R. v. Singh, 2010 ONCA 11, 250 C.C.C. (3d) 187 at paras. 39-40. The fresh evidence application the appellant ultimately seeks to pursue relates to the integrity of the trial process – disclosure and his related claim of abuse of process – rather than the substance of the convictions. Thus, when considering whether there is a reasonable possibility that an order for production will produce information which may be received as fresh evidence on appeal, the relevant fresh evidence test is that outlined in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), rather than the test from R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: R. v. Tran, 2024 ONCA 542, at para. 26.
[21] The fundamental concern under the second branch of the Trotta test is the same in either situation. As this court explained in Singh, at para. 40, it is “aimed at requiring that the moving party show a reasonable possibility that a production order will assist in developing a successful ground of appeal.”
[22] The appellant argues that the Trotta test does not apply because the material he is seeking should be characterized as first-party disclosure and not third-party disclosure. Respectfully, the appellant is wrong for two reasons.
[23] First, the appellant misreads Trotta. The test outlined in Trotta applies to motions for production under s. 683(1)(a) whether the material sought is characterized as first-party or third-party disclosure. In Trotta, at para. 23, Doherty J.A. explained that, while the Crown’s disclosure obligation continues through the appellate process, “the resolution of disclosure disputes on appeal will require a somewhat different analytical framework than that described in Stinchcombe.” He explained that there are at least two reasons for applying a different framework to disclosure disputes on appeal: first, a convicted person is no longer presumed innocent; and second, a convicted person has exhausted their right to make full answer and defence: see Trotta at paras. 20-25.
[24] Thus, whether the test enunciated in Trotta applies hinges on the fact that a dispute about disclosure arises during the appeal process, not on whether it is third-party, rather than first-party disclosure. As a result, in this case, the Trotta test applies whether the documents sought by the appellant are characterized as first-party or third-party disclosure.[2]
[25] Second, even if the appellant were correct as a matter of law that the Trotta test does not apply to documentation characterized as first-party disclosure, the record does not support the conclusion that the material he seeks is first-party disclosure. While the relevance threshold in Stinchcombe extends beyond matters directly impacting guilt or innocence (for example, issues related to Charter breaches or abuse of process), it is not infinitely elastic.
[26] As outlined above, the aspect of the appellant’s abuse of process claim that gives rise to this motion concerns the failure of the Crown to disclose emails of two TPS officers during the trial. The Crown has now provided disclosure to the appellant of the officers’ emails, an explanation of why it was believed that they were deleted, and details of the investigation that led to the discovery that the emails were still available. The appellant has been provided with the opportunity to cross-examine extensively on the substance of all issues related to why it had been believed that the emails were deleted and the investigation that led to the emails being found.
[27] What the appellant now seeks is one step removed from the two officers’ emails that he was earlier told had been deleted and the investigation into that issue. He seeks information about the process by which the TPS worked with TPS legal counsel and Crown counsel, several years after his conviction, to respond to further disclosure inquiries from the appellant. All the factual information about why the two officers’ emails were not initially disclosed and the subsequent finding of the emails has been provided to the appellant and has been subject to cross-examination by the appellant. The information that the appellant now seeks about the process by which the TPS prepared responses to his further disclosure inquiries – covering the period between 2021 and 2024 – goes beyond first-party disclosure under Stinchcombe.
[28] While the appellant argues that he is merely seeking to exercise his right to cross-examine, we agree with the respondents that this is, practically speaking, a request for production governed by the test in Trotta. The appellant’s production request also goes beyond what would reasonably be covered by the right to cross-examine on the circumstances leading to the belief that the emails of the two officers had been deleted and the investigation leading to the emails being found. The redacted material the appellant seeks to access is not about the investigation leading to the discovery of the missing emails. Rather, as stated above, it is about the process followed by TPS officers and employees, working with TPS legal counsel and Crown counsel, to respond to the appellant’s further disclosure inquiries.
[29] We return then to whether the appellant has satisfied that Trotta test for production under s. 683(1) of the Criminal Code.
[30] Two panels of this court, differently constituted, have reached the conclusion that there is no air of reality to the appellant’s abuse of process claim relating to the emails of the two officers. While we are not bound by the conclusions of those panels, we reach the same conclusion on the record before us.
[31] Reviewing the voluminous record compiled to date, there is no reasonable possibility that ordering further production will result in evidence that may meet the admissibility threshold for fresh evidence as discussed in Trotta and Singh. The appellant has not pointed to any use he could have made of the late-disclosed emails at trial or any impact the late disclosure had on his right to make full answer and defence. Nor is there any reasonable basis to conclude that the TPS or the Crown acted dishonestly or in a manner that would undermine the integrity of the administration of justice in relation to the emails mistakenly believed to have been deleted. Because there is no viable factual foundation – no air of reality – to the appellant’s claim of abuse of process, there is no reasonable possibility that the additional production sought would contribute to a successful ground of appeal.
[32] At base, the appellant’s claim has two problems. First, there is no air of reality to the appellant’s abuse of process claim, and thus, no reasonable possibility that ordering production of the redacted portions of the emails would lead to admissible fresh evidence or a viable ground of appeal. Second, the material now sought by the appellant – about the process of responding to the appellant’s further disclosure inquiries while the appeal was pending – is at one remove from the abuse of process claim.
[33] As a result of our conclusion that the Trotta test applies and that the appellant has not satisfied the test, it is not necessary to consider whether the redacted portions of the emails are covered by solicitor-client privilege. . R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
Here the court considers the contrasting appellate remedy options of new trial and stay:D. Stay or New Trial
[345] Since an acquittal is not appropriate, we must determine whether to order a stay or a new trial.
[346] The Crown asks that we stay the proceedings under Babos since it would not be in the public interest to prosecute. In the Crown’s submission, a stay is the most public and transparent way to bring this matter to a conclusion.
[347] The appellant, on the other hand, asks us not to stay the proceedings. He wants his acquittal and says that if we stay the proceedings, he will be deprived of all possibility of that acquittal at a new trial.
[348] We accept that we have jurisdiction to stay the proceedings under Babos. In Babos, the court held that a stay of proceedings is a discretionary remedy, one that flows in the clearest of cases where one of two things is operative: (i) the state conduct has compromised the fairness of the accused’s trial (often referred to as the “main category”); or (ii) where the state conduct may not compromise trial fairness, but it risks undermining the integrity of the judicial process (often referred to as the “residual category”): at para. 31.
[349] Although there are two categories, the test remains the same for both, involving as it does three elements: (i) prejudice to the accused’s right to a fair trial or the integrity of the justice system; (ii) no alternative remedy capable of redressing the prejudice; and (iii) if there is still uncertainty after (i) and (ii), a balancing of various factors, including the societal interest in a final decision on the merits: Babos, at para. 32.
[350] The Crown argues that we should enter a stay of proceedings under the main category because of a clear unfairness to the appellant’s fair trial interests going forward. Quite simply, argues the Crown, there can be no fair trial this many years later. Therefore, we should stay the proceedings.
[351] We agree with the Crown that there can be no fair trial, but disagree that we should stay the proceedings.
[352] In our view, a fundamental concern in applying Babos is fairness to the accused. To grant a stay without regard to fairness from the appellant’s perspective would be paternalistic, especially in the wake of a miscarriage of justice. In this case, the appellant holds out hope for an acquittal if a new trial is ordered.
[353] Whether ordering a new trial will result in an acquittal remains to be seen. Although it is clear that the Crown will not be prosecuting this matter again, it is not at all clear what the Crown will do if the matter is returned to the Superior Court. This is very much unlike Bouvette, where the Crown made clear that if the Supreme Court did not enter the acquittal, the Crown would ask that Ms. Bouvette be arraigned, call no evidence and invite the acquittal. Returning the matter was pro forma in those circumstances: Bouvette, at para. 83.
[354] But those are not the circumstances here. Here, the Crown has left open which avenue it will pursue. It may (i) arraign and call no evidence (which would result in an acquittal); (ii) withdraw the charge; or (iii) enter a stay of proceedings pursuant to s. 579 of the Criminal Code.
[355] There was a good deal of discussion at the hearing of this appeal about the third option, the Crown stay of proceedings. Because it was suggested that this is a route that the Crown might choose, we offer brief comment on the subject in an effort to avoid the matter returning to this court in any subsequent proceedings.
[356] The Attorney General and counsel instructed by the Attorney General are entrusted with significant powers and discretion. The s. 579 Crown stay is one such exercise of discretion:579 (1) The Attorney General or counsel instructed by the Attorney General for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by the Attorney General’s or counsel’s direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated. [357] If a proceeding is stayed under s. 579(1), it may either be recommenced or, where that does not happen “within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced”: s. 579(2).
[358] As the Crown Prosecution Manual for Ontario recognizes, a s. 579 stay is not appropriate unless there is an expectation of recommencing the proceeding within one year: Ontario Crown Prosecution Manual, “Charge Screening” at D.3. This policy follows the recommendation of former Chief Justice of Canada Antonio Lamer. In his 2006 commission of inquiry report, he criticized the use of the stay as a way to dispose of prosecutions and drafted model guidelines indicating that stays should only be used where “there is a reasonable likelihood of recommencement of proceedings”: The Right Honourable Antonio Lamer, P.C., C.C., C.D., The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken: Report and Annexes (St. John’s: Office of the Queen’s Printer, 2006), at pp. 303-325. In other words, s. 579 should not be used in circumstances where the objective is simply to allow a charge to wither on the vine.
[359] We agree. A Crown stay is not to be used to make a charge disappear. Rather, it is to be used to provide an opportunity for the Crown to put a case it wishes to advance in order. Here, it appears that the Crown is not intending to put a case in order. To the contrary, it appears that the Crown is not intending to ever proceed with a new trial.
[360] With that said, we order a new trial and leave it for the Crown to exercise its discretion in an appropriate manner. . R. v. Rees [consideration of acquittal]
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
The court considers acquittal as an appellate remedy after finding a miscarriage of justice, here in this historical appeal context:C. An Acquittal Is Not Appropriate
[200] Should the appellant be acquitted? The short answer is “no” because: (i) a properly instructed jury, acting reasonably, could convict the appellant; (ii) it is not clearly more probable that the appellant would be acquitted at a hypothetical new trial; and (iii) there is no basis upon which to exercise our residual discretion.
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2. An acquittal is not appropriate under Truscott
a. The Truscott framework applies in this case
[242] In Truscott, this court held that it was in the interests of justice to deviate from the usual approach to remedy. As the court noted: “[t]he remedial discretion in s. 686(2) is sufficiently broad to permit resort to a more vigorous review of the evidentiary record in those cases where that approach is required in the interests of justice”: at para. 259. Instead of asking whether a reasonable jury could convict on the trial evidence, as augmented by the fresh evidence on appeal, the court may instead engage in a hypothetical new trial to determine if it is “clearly more probable than not that the appellant would be acquitted at a new trial”: at para. 268.
[243] Once the decision to quash a conviction is made on the basis of some fresh evidence admitted on appeal under the test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, (in this case, the Raymer tape), it is no longer necessary to determine whether the rest of the evidence meets the Palmer criteria: Truscott, at para. 270. The focus instead shifts to remedy and how all of the new evidence could reasonably be expected to affect the respective cases of the Crown and defence at a new trial.
[244] In this context, the fact-finding power of this court is limited to interpretations of the material and inferences to be drawn from facts that are not only reasonable but that are readily available from the material: Truscott, at para. 278. Speculation must be avoided and a cautious approach taken: at para. 278.
[245] Before engaging in the hypothetical new trial analysis, it is necessary to first address the Crown’s argument that resort to such an analysis is not appropriate in this case.
[246] In the Crown’s submission, the Truscott framework “should be reserved for the most exceptional of cases”, ones that involve: (1) extraordinary prejudice suffered; (2) a sufficient appellate record on key issues; (3) fresh evidence that unambiguously and substantially weakens key pillars of the Crown’s case; and (4) no forum better placed than the appeal court to assess culpability. The Crown maintains that only where these “preconditions” are met may an appeal court engage in a hypothetical new trial. According to the Crown, “the exceptional threshold requirements for [the appellant] to access the Truscott framework are not satisfied” in this case.
[247] There is no question that, “[i]n a routine appeal, if a conviction would be a reasonable verdict on a retrial, the court should remit the matter to the trial court for that retrial”: Truscott, at para. 258. Both the majority and minority in Bouvette agree with that proposition: see paras. 76, 197.
[248] It is only where a case falls “outside of the norm” that a more vigorous review of the evidentiary record may be appropriate “in the interests of justice”. Truscott, at para. 259. Here, the Crown asks us to clarify when a case will fall “outside of the norm”.
[249] It is important, in addressing this issue, to distinguish between two different questions: (1) when is it appropriate to engage in a more vigorous review of the evidence in accordance with Truscott? and (2) when is it appropriate to grant an acquittal, even though it is possible a reasonable jury could convict? As illustrated below, these are two different questions, and a more vigorous review of the evidence, assuming one is appropriate, will not always result in the conclusion that an acquittal should be ordered.
[250] In considering when it is appropriate to engage in a more vigorous evidentiary review, we are alive to the majority’s caution in Bouvette, that “inquiring into whether it is more probable than not that an acquittal would result at a retrial looks very much like the substantive weighing that is squarely within the competence of a trial court”: at para. 96.
[251] Indeed, in Truscott, this court recognized “the limits of appellate review”, but concluded that “[f]airness to the appellant dictat[ed] that this court should … endeavour to bring this matter to a conclusive end”: at para. 266. The court also recognized that a hypothetical new trial could be viewed as “artificial and speculative”: at para. 278. Without a doubt, “an actual new trial would be preferable to this process”: at para. 278. That, however, was not an option. In the “unique circumstances” of the case, the court determined the appropriate remedy by envisioning how a hypothetical new trial would proceed in light of the entirety of the new information that was before the court: at para. 268.
[252] We note that, in Truscott, the court did not depart from the usual approach to remedy simply because the case involved a miscarriage of justice. Rather, the court took into account other factors that made the case “far from a routine appeal”: at para. 260. In other words, the court signaled that it will not be in every miscarriage of justice case that it is appropriate to apply a different analytical approach to remedy.
[253] In this case, there is an extensive record before this court, including the original trial record and a significant amount of new evidence. The appellant’s primary argument is that he is entitled to an acquittal based on a Truscott analysis. Although the Crown disagrees that it is appropriate to engage in such an analysis, the Crown fully engaged on that issue as well. The appellant, through no fault of his own, was denied a fair trial and therefore suffered a miscarriage of justice. It is clear that no new trial will ever occur because the Crown concedes that it would be unfair to retry the appellant.
[254] In our view, and for all of those reasons, this is a case that falls “outside of the norm” and, therefore, it is appropriate, in the interests of justice, to engage in a Truscott analysis and apply the “clearly more probable than not” test. .... . R. v. R.M.
In R. v. R.M. (Ont CA, 2023) the Court of Appeal considers several CCC 686 court powers on appeal, including the court's standing to invoke the 'curative proviso' when an appeal shows a non-material error:[12] If I were satisfied that this error caused the appellant no prejudice, his appeal could potentially have been dismissed by invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. However, “it is not open to an appellate court to apply the curative proviso on its own motion”: R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 13 (citation omitted), and the Crown has not invited us to do so, disclaiming reliance on the proviso. In my view, this precludes me from taking this approach here, even if it was otherwise appropriate.
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[39] Section 686(1)(b)(i) of the Criminal Code permits this court to dismiss an appeal when:[T]he court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment. [40] Section 686(3) of the Criminal Code provides further that in this situation the court “may substitute the verdict that in its opinion should have been found”. This includes lifting a conditional stay imposed pursuant to Kienapple: see, e.g., R. v. Breton, 2016 ONCA 425, at para. 14. This court may then either affirm the sentence passed by the trial court, impose a different sentence warranted by law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
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