Appellate Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95397)

General Principles

The Court of Appeal has powers to take receive evidence under s. 683. This consists of the authority to:

  • order the production of any writing, exhibit or other thing connected with the proceedings;
  • "order any witness ... to attend and be examined before the court of appeal..." and admit the testimony as evidence;
  • order an inquiry and report to a special commissioner and to act on such a report.
Powers of court of appeal

683 (1) For the purposes of an appeal under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], the court of appeal may, where it considers it in the interests of justice,

(a) order the production of any writing, exhibit or other thing connected with the proceedings;
(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii) [compel witnesses to be examined by a judge or appointee of Court of Appeal];
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;
(e) order that any question arising on the appeal that
(i) involves prolonged examination of writings or accounts, or scientific or local investigation, and
(ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal,
be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal;
(f) act on the report of a commissioner who is appointed under paragraph (e) [order question be referred to inquiry by a commissioner] in so far as the court of appeal thinks fit to do so; and
(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.
Parties entitled to adduce evidence and be heard

(2) In proceedings under this section, the parties or their counsel are entitled to examine or cross-examine witnesses and, in an inquiry under paragraph (1)(e) [order question be referred to inquiry by a commissioner], are entitled to be present during the inquiry, to adduce evidence and to be heard.

[omitted (2.1), (2.2), (2.3), (3), (4), (5), (5.1), (6), and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29; 2019, c. 25, s. 281.

– CCC (CanLII), (DOJ)[1]

Note up: 683(1) and (2)

  1. ↑ s. 683 was previously s. 610, R.S.C. 1970, c. C-34. see Table of Concordance (Criminal Code)

Compelling Evidence

Under s. 683(1)(b), a Court of Appeal may order the production of materials.[1] The test to permit the production of records requires that the applicant satisfy the following:[2]

  1. "demonstrate a connection between the Request for Production and the fresh evidence he proposes to adduce";
  2. "that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence"; and
  3. "it must be demonstrated that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal".

This authority does not permit the court to compel a trial witness tot attend a specified place and provide a sample of his voice for comparison purposes.[3]

  1. ↑ R v Travers, 2019 NSCA 56 (CanLII), per Farrar JA, at para 24
  2. ↑ R v Trotta, 2004 CanLII 60014 (ON CA), [2004] OJ No 2439, per Doherty JA, at para 25
  3. ↑ R v Karimi, 2014 ONCA 133 (CanLII), per curiam

Fresh Evidence

The test for the admission of fresh evidence is set out as follows: [1]

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases
  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.

Where however, the application arises out of the Crown's failure to provide disclosure, then test is less onerous.[2] The accused must show that his right to make full answer and defence was violated by showing either "that there is a reasonable possibility the non-disclosure affected the outcome at trial" or that it affected "the overall fairness of the trial process."[3]

The Palmer criteria are somewhat relaxed when the issue concerns the integrity of the trial process.[4]

Due Diligence

The due diligence criteria is to be applied flexibly when there is a risk of a miscarriage of justice.[5]

"Undoing" trial tactics

Courts should not permit fresh evidence that was adducible but not tendered for tactical reasons as it is not in the interests of justice.[6] The appellant will generally not be permitted to "undo tactical decisions."[7]

Appeal of Sentence

A sentence appeal is permitted under s. 687. Where the defence counsel failed to put forward evidence relating to collateral immigration consequences, the court should generally allow for fresh evidence.[8]

A failure by the Crown to exercise due diligence to seek out and put a youth record to the sentencing judge in an adult matter may be remedied by a fresh evidence application at the appeal hearing.[9]

  1. ↑ R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J (9:0), at p. 775 [cited to SCR}]
    R v Levesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487, per Gonthier J (6:1)
    R v Hay, 2013 SCC 61 (CanLII), [2013] 3 SCR 694, per Rothstein J (7:0), at para 63
    R v Truscott, 2007 ONCA 575 (CanLII), 225 CCC (3d) 321, per curiam (5:0), at para 245
    R v Garcia, 2018 ONCA 580 (CanLII), per curiam (3:0), at para 2
    R v Trotta, 2004 CanLII 60014 (ON CA), [2004] OJ No 2439
  2. ↑ R v McQuaid, (sub nom R v Dixon), 1998 CanLII 805 (SCC), [1998] 1 SCR 244, per Cory J (5:0), at p. 34
    R v Taillefer, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J (9:0)
    R v Illes, 2008 SCC 57 (CanLII), [2008] 3 SCR 134, per LeBel and Fish JJ (4:3), at para 24
  3. ↑ McQuaid, supra, at para 34
  4. ↑ R v Benham, 2013 BCCA 276 (CanLII), 340 BCAC 26, per Frankel JA (3:0), at para 33
    R v Dunbar, 2003 BCCA 667 (CanLII), 191 BCAC 223, per curiam (3:0), at paras 33 to 37
  5. ↑ R v Fraser, 2011 NSCA 70 (CanLII), 273 CCC (3d) 276, per Saunders JA (3:0), at para 36
  6. ↑ R v Maciel, 2007 ONCA 196 (CanLII), per Doherty JA, at para 39
  7. ↑ Maciel, supra at para 40
    R v Buxbaum, 1989 CanLII 9944 (ON CA), 33 OAC 1, per curiam at 9-10
    R v Canhoto, 1999 CanLII 3819 (ON CA), 140 CCC (3d) 321, per Doherty JA, at paras 43 to 45
    R v Smith, 2001 CanLII 20968 (ON CA), 161 CCC (3d) 1, per Simmons JA, at para 71
    R v Perlett, 2006 CanLII 29983 (ON CA), 212 CCC (3d) 11, per Laskin JA, at paras 141 to 145
  8. ↑ R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739
  9. ↑ R v Tamoikin, 2020 NSCA 43 (CanLII), per Van den Eynden J

Post-Sentence Evidence

The courts are reluctant to consider fresh evidence on appeal as it is outside of the appeal court's role.[1]

There are four criteria to consider before allowing the evidence:[2]

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.
  3. The evidence must be credible in the sense that it is reasonably capable of belief.
  4. The evidence 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.

See also:R v Power, 2011 NLCA 68 (CanLII), 971 APR 31, per Welsh JA (3:0)

  1. ↑ R v Lévesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487, per Gonthier J (6:1), at para 20
  2. ↑ Levesque, at 35

Post-Sentence Report

See also: Pre-Sentence Reports

The Court of Appeal has jurisdiction to order a post-sentence report under s. 687 or 721.[1] If it to be ordered under s. 721, the order should only be made once the court has received some evidence, such as by affidavit, establishing the basis for ordering the report.[2]

Where the ordering of a post-sentence report is in dispute the proper test is the same as for the admission of fresh evidence.[3]

  1. ↑ R v Taylor, 2009 ABCA 254 (CanLII), 460 AR 266, per Côté JA (alone)
  2. ↑ Taylor, ibid.
  3. ↑ R v Webster, 2016 BCCA 218 (CanLII), per Frankel JA (3:0), at para 40
    R v Takhar, 2007 BCCA 423 (CanLII), 226 CCC (3d) 410, per Ryan JA (3:0), at para 14
    R v Radjenovic, 2013 BCCA 131 (CanLII), 573 WAC 93, per D Smith JA (3:0), at para 6
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