Fresh Evidence on Appeal

R. v. Hartman, 2015 ONCA 498:

[18]       Evidence is admissible on appeal if it is “in the interests of justice” to receive the evidence: Criminal Code, R.S.C., 1985, c. C-46, s. 683(1).[2]  The reliability of verdicts is an essential aspect of “the interests of justice”. When, as in this case, the evidence proffered on appeal challenges a factual finding essential to the verdict reached at trial, the admissibility of the evidence will depend on three inquiries (see R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 80-125; R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 65-68):

·        Is the proffered evidence admissible under the generally applicable rules of evidence governing criminal proceedings?

·        Is the evidence sufficiently cogent to warrant its admission?

·        What is the explanation for the failure to tender the evidence at trial, and should that explanation affect the admissibility of the evidence on appeal?

[19]       The first two inquiries address prerequisites to admissibility. It will never be in the “interests of justice” to admit evidence on appeal that is not legally admissible under the normal rules of evidence. Nor will the “interests of justice” ever be served by admitting evidence that lacks sufficient cogency. The third inquiry does not go to a prerequisite to admissibility, but instead considers the explanation for the failure to lead the evidence at trial and whether that explanation compels the exclusion of the evidence even though it would otherwise be admissible on appeal. This inquiry, often referred to as the “due diligence” inquiry, recognizes that the “interests of justice” in s. 683(1) embrace administration of justice concerns such as finality that go beyond the specific interests of the appellant. For example, it may not be in the “interests of justice” to receive evidence on appeal, even though it is legally admissible and could reasonably be expected to have affected the result, if that evidence was available at trial and a tactical decision was made to not lead that evidence: e.g. see R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 36-55, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.  

[20]       The cogency inquiry addresses three features of the evidence tendered on appeal. The proffered evidence must be relevant, in that it bears upon a potentially decisive issue at trial. The evidence must also be credible, in that it is reasonably capable of belief. Finally, the evidence must be sufficiently probative, in that it could reasonably be expected to have affected the result when taken with the other evidence adduced at trial and on appeal. On this appeal, the Crown and appellant’s disagreement centres on the probative value of Dr. Gojer’s opinion. They otherwise agree that his evidence is legally admissible, relevant and reasonably capable of belief.