Adducing fresh evidence on appeal where Crown non-disclosure exists

Yesterday's Court of Appeal decision in Toronto (City) v. Gallos, 2008 ONCA 617 shows the distinction in the rules relating to adducing fresh evidence on appeal in normal circumstances and where the fresh evidence is sought to be adduced where there was prosecutorial non-disclosure.

In such cases the test, while non-trivial, is considerably easier than in the ordinary course. The Court held:

[50]          Under Taillefer, [[2003] 3 S.C.R. 307 ] the test for admission of fresh evidence where the prosecution has breached its disclosure obligations is twofold: i) whether there is a reasonable possibility the verdict would have been different had the breach not occurred; and ii) whether there is a reasonable possibility that trial fairness was compromised as a result of the non-disclosure. Unlike under the Palmer test, the applicant is not required to demonstrate that it is probable that the fresh evidence would have affected the verdict: see Taillefer at para. 78.
James Morton
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