Fresh evidence on appeal

R. v. T.S., 2012 ONCA 289 deals in detail with the reception of fresh evidence on appeal:

[114]    Appellate courts have the broad discretion to receive further evidence on appeal when the court considers it in the interest of justice to do so. This statutory discretion involves a context-sensitive inquiry into all the circumstances of the case: Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 81; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44. In the exercise of this discretion, we are bound to take cognizance not only of the appellant’s interests in fully pursuing his appellate remedies, but also of the broader long-term interests of the administration of justice: Snyder, at para. 44. 

[115]    The exercise of our statutory discretion to receive further evidence on appeal requires an answer to three questions:

i.        Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]

ii.       Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]

iii.      What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry]

Snyder, at para. 45; Truscott, at para. 92. See also, R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

[116]    Evidence tendered for reception on appeal may impeach the reliability of a verdict reached at trial in different ways.  It may cast doubt on a theory of liability advanced by the Crown, impeach the credibility of a crucial Crown witness or the reliability of his or her testimony, or diminish the confirmatory potential of evidence advanced as supportive of the testimony of a Vetrovec witness: R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at paras. 17-19.

[117]    The cogency requirement directs an appellate court to weigh, to some extent, the potential probative value of the proposed evidence.  Of necessity this weighing must be contextual, taking into account the evidence adduced and the positions advanced at trial: R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 72; Truscott, at para. 100.

[118]    The cogency criterion  requires an appellate court to ask three questions:

·             Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?

·             Is the evidence credible in that it is reasonably capable of belief?

·             Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

Truscott, at para. 99.

[119]    In the end, evidence proposed for admission on appeal targets the reliability of the verdict reached at trial. 

[120]    Sometimes, the fresh evidence takes aim at a finding of fact that was material to the ultimate finding of guilt. By producing evidence that the appellant argues would remove or render unreliable one of the factual underpinnings of the trial verdict, the reliability of that verdict is called into question: Truscott, at para. 82.

[121]    At other times, the further evidence is not concerned with relitigation of factual findings made at trial. Instead, this evidence assails the fairness of the trial process itself - the process that produced the unfavourable findings.  The verdict is unreliable because something that happened at trial, materially interfered with the appellant’s right to make full answer and defence. An unreliable verdict produced by a fatally flawed process causes a miscarriage of justice: Truscott, at para. 85.

[122]    The admission of evidence on appeal of facts that were litigated at trial is exceptional: Snyder, at para. 44.

[123]    Where the evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe threshold.  Satisfaction of this burden establishes a breach of the appellant’s constitutional right to disclosure: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 31.

[124]    Provided the undisclosed information satisfies the Stinchcombe threshold, the appellant must next establish that the failure to disclose impaired the appellant’s right to make full answer and defence. The standard of proof required is proof on a balance of probabilities: Dixon, at para. 33.

[125]    Where an appellant seeks a new trial as a result of the impairment of his or her right to make full answer and defence because of a violation of his or her right to disclosure, he or she must persuade the appellate court of the reasonable possibility that the non-disclosure affected either the outcome or the overall fairness of the trial process: Dixon, at para. 35.

[126]    To assess the reliability of the trial result, we must consider the impact the undisclosed information might have had on the decision to convict: Dixon, at para. 36.  The issue is not whether the undisclosed information would have made a difference in the trial outcome, but rather whether it could have made a difference: R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 25.  To be more specific, we must decide whether there is a reasonable possibility that the undisclosed evidence could have created a reasonable doubt in the mind of the trier of fact: Illes, at para. 25; R. v. Taillefer, 2003 S.C.C. 70, [2003] 3 S.C.R. 307, at para. 82.

[127]    To assess the impact of the undisclosed evidence on the overall fairness of the trial, we must assess whether the appellant has shown a reasonable possibility that the overall fairness of the trial was impaired by the failure to disclose. This inquiry examines not only the content of the undisclosed information, but also the realisticopportunities to use the undisclosed information for purposes of investigation or gathering other evidence: Dixon, at para. 36. A relevant consideration is the diligence of trial counsel’s pursuit: Dixon, at paras. 37 and 38; and R. v. McAnespie, [1993] 4 S.C.R. 501, at pp. 502-503.

[128]    Also worth mention in the circumstances of this case is our obligation not to examine the undisclosed information, item by item, to assess its probative value, but rather to reconstruct the overall evidentiary tableau that would have been presented to the trier of fact had it not been for the trial Crown’s failure to disclose the relevant evidence: Taillefer, at para. 82; Illes, at para. 26.

[129]    An appellant can discharge the burden of establishing a reasonable possibility that a failure to disclose impaired the overall fairness of the trial process by showing that the undisclosed evidence could have been used to impeach the credibility of a witness for the Crown, or could have helped the defence in its pre-trial investigations and preparations, or in its tactical decisions made at trial: Taillefer, at para. 84.; Illes, at para. 27; and R. v. Skinner, [1998] 1 S.C.R. 298, at para. 12.