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Review - Fresh Law - Basics (3). R. v. Sutherland
In R. v. Sutherland (Ont CA, 2026) the Ontario Court of Appeal considered a test for 'fresh law':[12] The general rule is that this court will not permit new issues to be raised for the first time on appeal, unless the party that wishes to raise the issue satisfies the following criteria:(1) the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal;
(2) the failure to raise the issue at trial must not be due to tactical reasons; and
(3) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. . Lu v. Wang
In Lu v. Wang (Ont CA, 2025) the Ontario Court of Appeal considered 'fresh law' doctrine:[3] The test for this court to entertain new issues on appeal is stringent. As this court instructed in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43, the evidentiary record must be sufficient to permit an appellate court to fully, effectively, and fairly determine the new issues raised on appeal. Moreover the failure to raise the issues at trial must not be due to tactical reasons. And the court must be satisfied that no miscarriage of justice will result from the refusal to entertain the new issues on appeal.
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