R v C, 2020 ABCA 230
C was convicted of an aggravated assault on his long-time common-law partner. The victim suffered a brain injury and did not testify at the trial. After the trial, she wrote a victim impact statement in which she stated the appellant was not the perpetrator of the assault.
Mr. Royer was retained after the trial for the appeal.
Nature of Application? Fresh evidence on appeal.
The legal test is (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial… (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. (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.
Ruling:
Mr. Royer argued that the court ought to allow for the admission of the new evidence because the Court should admit fresh evidence if it is “in the interests of justice” to do so. This was just such a case.
The Court of Appeal said:
The third requirement … does not require that the evidence will likely be believed by the trier of fact but merely that it be reasonably capable of belief. We acknowledge that there are inconsistencies in the evidence. Nevertheless, the deponent is the victim and would have been a (if not the) key witness at trial. Given the importance of her evidence, we conclude that the new evidence satisfies the …test.
Mr. C had is aggravated assault conviction for which he had received a lengthy sentence set aside. Ultimately the prosecution decided not to proceed with a further trial. Mr. C. went from serving a lengthy sentence to being presumed innocent.