Application Of The Test For Admission Of Fresh Evidence

In order to lead fresh evidence at the appeal hearing, the appellant must bring a motion to adduce fresh evidence. This requires a notice of application explaining what the fresh evidence is and why it is in the interests of justice that it be received by the court.

R. v. Palmer, a 1980 Supreme Court of Canada decision established the test for the admission of fresh evidence on appeal:

1. The evidence should not be admitted if, by due diligence, it could have been adduced at trial, but this general principal will not be applied as strictly in criminal cases as in civil cases;
2. The evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;