Fresh evidence considered by Supreme Court

The criteria for admissibility of fresh evidence, established in Palmer v. The Queen, [1980] 1 S.C.R. 759, are well known:  (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) 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.

Many lawyers, including this author, had viewed the Palmer criteria as being almost conditions precedent to the admission of fresh evidence.

Today's decision in R. v. J.A.A., 2011 SCC 17 suggests the failure to fulfil a Palmer criteria is not, in itself, a basis for an application to admit fresh evidence to fail.

The Court held:

[8]                              The appellant essentially concedes that he cannot meet the due diligence criterion, as this evidence obviously could have been adduced at trial.  He submits, however, that this factor should not be determinative.  Trial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client's finger, as it seemed to him that "the mark was a minor generic scratch" which in fact appeared inconsistent with the complainant's testimony.  Further, the Crown did not contemplate calling expert evidence about the mark.  I agree that the due diligence criterion should not trump the other Palmer criteria, particularly in circumstances such as here where trial counsel's strategy was not unreasonable given the nature of the anticipated Crown evidence.