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  The test for the admission of fresh evidence on appeal


  1. Is the fresh evidence admissible under the generally applicable rules of evidence in criminal proceedings?

  2. Is the evidence sufficiently cogent to warrant its admission?

  3. What is the explanation for the failure to tender the evidence at trial, and should that explanation affect the admissibility of the fresh evidence on appeal? R v Richmond, 2016 ONCA 134 at para 95


  • More generally, evidence is admissible on appeal in a criminal case under s. 683(1) of the Criminal Code if its receipt is in the interests of justice: Richmond at para 96.



The Cogency Inquiry


The proffered evidence must be relevant, in that it bears upon a potentially decisive issue at trial.  The evidence must also be credible, in that it is reasonably capable of belief.  Finally, the evidence must be sufficiently probative, in that it could reasonably be expected to have affected the result when taken with the other evidence adduced at trial and on appeal: Richmond at para 98



The Due Diligence Inquiry


When the fresh evidence could have been led at trial, “some added degree of cogency is necessary before the admission of the evidence on appeal can be said to be in the interests of justice”: Richmond at para 110 (citations omitted)




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