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The Rationale for Admissions


The rationale for the admission of fresh evidence is that, in some cases, the potential for a miscarriage of justice outweighs countervailing concerns of finality and order, values essential to the integrity of the criminal process: R v Bos, 2016 ONCA 443 at para 118 

The Test


The appellate court must consider the following factors when deciding a fresh evidence application:

  1. whether by due diligence the party seeking to admit the fresh evidence could have adduced it at trial;

  2. whether the evidence bears upon a potentially decisive issue;

  3. whether the evidence is reasonably capable of belief; and

  4. whether it could reasonably be expected to have affected the result at trial, if believed: Palmer v. The Queen, [1980] 1 SCR 759 (SCC); Bos at para 119

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