Canada Case Law

WM v. Nova Scotia (Minister of Opportunities and Social Development)

Court

Nova Scotia Court of Appeal

WM’s fresh evidence was excluded because it did not relate to events after the appealed order, merely reiterated prior evidence, and would not affect the child’s best interests; the Minister’s fresh evidence was admitted because it related to events after the appealed order, was relevant and credible; the trial judge’s credibility findings were not displaced as there was no clear error materially affecting the result; given the child’s stability and wishes, remaining in the Minister’s permanent care is in her best interests, therefore the appeal is dismissed.

Source excerpt

• Permanent care and custody
• Fresh evidence admission
• Credibility findings
• Best interests of the child
• Publication restriction (s.94(1))

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R. v. Chen

Court

Court of Appeal for Ontario

Appellant proved on a balance of probabilities that his s.14 right was breached because the interpreter provided interpreted 100% into Cantonese rather than the requested Taishanese, and given the appellant’s unilingual Taishanese background, age, limited education, mental health and hearing issues there was a real possibility he did not understand parts of the proceedings; fresh evidence was admissible and remedy is a new trial.

Source excerpt

• Section 14 charter – right to interpreter
• Interpreter competence and accreditation
• Fresh evidence admission
• Voir dire for interpreter qualifications
• New trial remedy

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R. v. Alexander

Court

Nova Scotia Court of Appeal

The Court found trial counsel failed to provide clear, documented, and adequate advice or preparation regarding the appellant's decision to testify; absence of contemporaneous notes and counsel's flawed legal assessment (particularly regarding the use of medical evidence and criminal record) meant counsel effectively made the decision for the accused, rendering the trial unfair and constituting a miscarriage of justice; accordingly fresh evidence about counsel's advice was admitted in part, the conviction was set aside and a new trial ordered.

Source excerpt

• Ineffective assistance of counsel
• Fresh evidence admission
• Right to testify
• Miscarriage of justice
• Third party production
• Parole records

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R. v. Meeks

Court

Court Martial Appeal Court of Canada

The Court Martial Appeal Court admitted fresh evidence of administrative release, held that release does not automatically make detention inoperative, and suspended the remaining detention for one year.

• Detention sentence
• Suspension of sentence under s.215 nda
• Administrative release
• Fresh evidence admission
• Fitness of sentence
• Stare decisis and per incuriam

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Jagpal v. Samra

Court

British Columbia Court of Appeal

The Court of Appeal dismissed an appeal from a committee appointment under the Patient's Property Act, upheld the incapacity finding, and rejected fresh evidence and bias arguments.

• Declaration of incapacity
• Appointment of committee
• Fresh evidence admission
• Procedural unfairness
• Judicial bias
• Ineffective assistance of counsel

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Tan v. Tan

Court

Supreme Court of British Columbia

The court dismissed Li Wen Tan’s claims for assault, defamation, and related relief, found a June 3, 2013 agreement not credible, and awarded costs to Kai Tan.

• Assault/personal injury
• Forgery/document authenticity
• Fresh evidence admission
• Unjust enrichment
• Res judicata
• Costs

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R. v. Basso

Court

Court of Appeal for Ontario

Fresh evidence application dismissed because new material would not have altered the verdict or caused prejudice; conviction upheld because trial judge on the accused's own evidence found he adverted to the risk the complainant was underage and proceeded, satisfying the subjective recklessness mens rea required by Carbone/Morrison; ineffective assistance allegations failed for lack of demonstrated prejudice; sentence of 12 months was fit but the mandatory minimum in s.271(a) was declared unconstitutional under s.12 of the Charter and of no force or effect; remnant of custodial sentence stayed…

Source excerpt

• Sexual assault with a minor
• Mistake of age/recklessness
• Fresh evidence admission
• Ineffective assistance of counsel
• Mandatory minimum sentence
• Charter s.12 challenge

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WM, NL v. Nova Scotia (Community Services)

Court

Nova Scotia Court of Appeal

The fresh evidence (the mother's death) met Palmer criteria and was admitted; because the trial judge's protection finding and resulting permanent care order were premised on the mother's ongoing substance abuse and the father's inability to mitigate that specific risk, the mother's death removed the foundational substantial risk and therefore AB could no longer be said to be a child in need of protection at the time of disposition; the permanent care and custody order was set aside.

Source excerpt

• Permanent care and custody
• Child in need of protection
• Fresh evidence admission
• Best interests of the child
• Appeal procedure

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Iglesias v. Canada (Citizenship and Immigration)

Court

Federal Court

The Federal Court upheld the RAD’s refusal of refugee protection, finding the applicants had a viable internal flight alternative in Mérida and that the decision was reasonable.

• Internal flight alternative
• Reasonableness standard of review
• Fresh evidence admission
• State protection and police collusion
• Cartel-related persecution
• Internal-flight-alternative

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R. v. Lowry

Court

British Columbia Court of Appeal

The Court of Appeal for British Columbia ordered redacted CSC video clips produced to the appellant for use on his sentence appeal, with strict confidentiality conditions and a sealing order.

• Production of third-party records
• Fresh evidence admission
• Redaction and anonymization
• Sealing orders
• Third-party-records
• Fresh-evidence

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