Test to admit fresh evidence on appeal

Cases have been unpredictable on this issue. Recently some evidence that is clearly not fresh has been admitted on appeal "in the interests of justice". Yet today in R. v. J.A., 2010 ONCA 491 evidence clearly of some relevance and weight has been excluded because it was not fresh and was available at trial.

Perhaps the best view is the issue is fact driven on a case by case basis.

The Court held:

[31]          The test for the admissibility of fresh evidence was established by the Supreme Court of Canada in R. v. Palmer, [1980] 1 S.C.R. 759, and encompasses four propositions: the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; the evidence must be credible in the sense that it is reasonably capable of belief; and 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.

[32]          The Crown concedes that the second and third of these criteria – relevance and evidence reasonably capable of belief – are present in this case.

[33]          The appellant essentially concedes that he cannot meet the due diligence criterion.  ... .  It is not surprising, therefore, that the appellant's position on the due diligence criterion is put no higher than it should not be determinative, or that it cannot trump the other Palmer criteria. 

[34]          I do not disagree with the appellant's invocation of caution concerning the due diligence criterion.  However, I pause to make two observations.  First, as stated above, the appellant cannot meet this criterion in this case.  Second, the due diligence criterion is part of the Palmer test and cannot be ignored or wished away.  It plays an important role in the administration of criminal justice, as explained by Doherty J.A. in R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411:

The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence but also the integrity of the criminal process.  Finality and order are essential to that integrity.  The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial.  Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record.  Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal.  For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed.