Fresh evidence, interests of justice and competence of counsel

The test for admission of fresh evidence on appeal is fluid and depends on the interests of justice.  Sometimes, as in R. v. White, 2010 ONCA 474, evidence will be admitted as fresh even though it is arguably neither new nor unavailable at trial – if the interests of justice so demand.  Where there is an issue as to competence of counsel evidence that would have otherwise been available may well be admitted as if it were properly fresh evidence.

 

The Court writes:

 

[2]               We agree with Crown counsel that the test for fresh evidence has been met and that the appeal must be allowed.  The Crown’s case in 1995 depended upon the evidence of Daniel Wither, another employee at the Centre.  Four years after the alleged assault, he claimed that he saw the appellant sexually assault a severely developmentally-delayed resident.  The alleged assault and accompanying lewd remarks were completely out of character for the appellant, who was described at sentencing as a caring and dedicated employee.

 

[3]               The appellant’s 1995 trial was a brief one.  Defence counsel did not call the appellant nor adduce any defence evidence.  Substantial material that could have undermined the credibility of Mr. Wither was available to the defence, and actually in counsel’s file, but was not used by the appellant’s trial counsel.  We note in particular that there was substantial evidence available to the defence showing that Mr. Wither had a motive to falsely implicate the appellant and that Mr. Wither was in breach of a directive, that he would have known about, to immediately report incidents of sexual abuse.

 

[4]               We agree with Crown counsel that while not all of the proposed evidence meets the test for fresh evidence, there is a substantial body of admissible fresh evidence showing that the appellant did not receive effective assistance of counsel.  We refer in particular to the material concerning the so-called Herring Report that could have demonstrated Wither’s motive to lie and the material that could have undermined Wither’s explanation for his failure to report the alleged assault at the time.  These materials were either actually available to trial counsel or could easily have been obtained.  The failure to use the materials in cross-examination of Wither and as part of a defence case demonstrates ineffective assistance of counsel, even granting the strong presumption that counsel’s conduct falls within the wide range of reasonable and professional assistance.

 

[5]               We are also satisfied that failing to use the evidence resulted in a miscarriage of justice.  The appellant has demonstrated that the verdict is unreliable since if counsel had performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.  The Crown’s case depended upon Mr. Wither’s testimony.  The fresh evidence, used effectively, could have so undermined his credibility as to leave the jury with a reasonable doubt that the alleged assault ever occurred.