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
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The Test
The appellate court must consider the following factors when deciding a fresh evidence application:
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whether by due diligence the party seeking to admit the fresh evidence could have adduced it at trial;
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whether the evidence bears upon a potentially decisive issue;
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whether the evidence is reasonably capable of belief; and
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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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