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| Patrick Ducharme |
Fresh evidence may be admitted on appeal only if:
a. by due diligence it could not have been adduced at trial;
b. the evidence is relevant because it bears upon a decisive or potentially decisive issue in the trial;
c. the evidence is credible because it is at least reasonably capable of belief; and
d. if the evidence was believed that it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.1
A good example of when these criteria are met is R. v. Hay.2 The Appellant had been convicted of first-degree murder and attempted murder in a nightclub shooting. In his appeal to the Court of Appeal for Ontario the Appellant argued that he should be allowed to produce fresh evidence. His appeal was dismissed.
He was granted leave to appeal to the Supreme Court of Canada. The court found that there was a significant issue as to whether the accused was the second of two gunmen who participated in the murder. The eyewitness identification at trial was equivocal. While there was some circumstantial evidence appearing to link the Appellant to the shooting, the fresh evidence proposed on appeal could possibly bear decisively on the issue of identification.
At trial the Crown relied on hair clippings found wrapped in a newspaper that were found in the garbage can of a washroom adjacent to the Appellant’s bedroom to suggest that the Appellant had changed his appearance after the murder to disguise his involvement. On appeal the Appellant asked the court to order that the hair clippings be released for forensic examination. The defence counsel at trial stated in an affidavit that he was unaware that forensic analysis could distinguish between scalp and facial hairs. A letter from the appellate counsel who argued the case in the Court of Appeal for Ontario stated that he was similarly unaware of this potential testing. The court was advised that this testing would only take approximately three weeks to complete.
The Supreme Court of Canada, in the interests of Justice, ordered the release of these hair samples based on their potential importance in permitting the Appellant to present his application for leave to appeal to the Supreme Court of Canada. The court found that “At this stage, the applicant wishes simply to explore a possible source of expert evidence that may or may not produce evidence that is capable of laying the basis for such an application.”3
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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