In R v Shafia, the Court of Appeal for Ontario refused to admit evidence proffered, for the first time on appeal, to establish that the trial court lacked jurisdiction to try an appellant because he was a minor at the time of the alleged offence. Watt J.A., on behalf of a unanimous Court, referred to the “strong onus imposed upon an accused to advance jurisdictional challenges at the outset of trial” and “the exceptional authority to receive fresh evidence on appeal and consider issues not raised at trial” to conclude that an appellate court must apply a stringent standard when asked to admit evidence challenging the jurisdiction of a trial court.

Background

Hamed Shafia, along with his parents, was charged with and convicted of four counts of first degree murder. One of Hamed’s grounds on appeal was that, after his conviction, his father discovered that Hamed was born on December 31, 1991, and not 1990 as his family had believed and represented for years. As a result, Hamed claimed he was 17 years old and a “young person” under the Youth Criminal Justice Act at the time of the alleged murders. Under section 14(1) of the YCJA, a “young person” can only be tried in the youth justice court, and Hamed had been tried in an adult court with his parents.

Hamed asked the Court of Appeal to admit three pieces of fresh evidence that, according to him, showed that he was born in 1991: a tazkira (an identity document issued by the Afghan government), a Census General Presidency form translating the identity page of the tazkira, and a Certificate of Live Birth issued by the Afghan Ministry of Public Health. Hamed’s father also provided an affidavit explaining how an employee of his in Afghanistan obtained the documents and discovered Hamed’s true age after he was convicted. The Crown strenuously opposed the fresh evidence application. It attacked the reliability of the documents and the plausibility of the explanation offered by Hamed’s father in his affidavit.

Principles Governing Admissibility of Fresh Evidence on Appeal

As a starting point, Watt J.A. observed that the role of appellate courts is to review decisions made by trial courts, and “[i]nherent in the appellate function is a requirement that issues be raised and determined at trial before they will be considered on appeal.” In particular, he observed, there is a strong onus on an accused to raise jurisdictional challenges at the outset of trial.

However, Watt J.A. also noted that these rules are not unyielding. Section 683(1)(d) of the Criminal Code permits an appellate court to receive fresh evidence if it is “in the interests of justice” to do so. Watt J.A. made the following observations about the test applied under that section:

[175] The “interests of justice” test requires an appellate court to make a context-sensitive inquiry into all the circumstances, including the grounds of appeal advanced, the material tendered for admission and the remedies sought.

[176] The mere fact that the evidence proposed for admission has some probative value on a material issue does not mandate its receipt by an appellate court. The court must engage in a qualitative assessment of the potential value of the evidence proposed for admission. This assessment demands a careful evaluation of the proffered evidence and the credibility of its source. This evaluation does not involve a determination of the ultimate reliability of the evidence and the credibility of its author, for that is the role of the trier of fact in another forum. The evaluation takes place in the context of determining whether the evidence is sufficiently cogent to warrant its admission on appeal having regard to the purpose for which the evidence is tendered.

[177] To some extent at least, the test applied to determine whether evidence tendered for admission on appeal will be received is a function of the basis upon which the verdict is impeached. For example, where an appellant proffers fresh evidence to challenge a factual finding at trial, the proposed evidence must itself generally be relevant, material and admissible on the controverted issue. On the other hand, where the challenge is to the fairness of the adjudicative process followed to establish guilt, say that trial counsel provided ineffective assistance, the evidence tendered for admission on appeal would generally need to establish the problem being asserted and whether the problem resulted in a miscarriage of justice. [Citations omitted.]

Application of Principles

Watt J.A. observed that the issue for which Hamed was tendering fresh evidence – the absence of trial jurisdiction – did not settle into either of the categories identified above. However, given the fact in issue (i.e., Hamed’s age) related to the trial court’s jurisdiction and should have been raised at the outset of trial, and given concerns about the credibility and cogency of the evidence, the Court was required to apply serious scrutiny before admitting the proposed fresh evidence.

The fresh evidence application was dismissed. Watt J.A. offered a number of reasons for that holding: the evidence was not sufficiently compelling given the exceptional nature of jurisdictional challenges advanced for the first time on appeal; as the proposed evidence did not challenge either a finding of fact essential for conviction or trial fairness, the Court was required to place greater weight on protecting the integrity of the trial system; the principal piece of evidence, the tazkira, was inadmissible hearsay and was inherently suspect; Hamed’s family had consistently stated that Hamed was born in 1990 on a number of occasions; the new date of birth advanced on appeal would render the birthdates of four of the seven Shafia children inaccurate; and, finally, the only accurate source of information about Hamed’s date of birth, his mother, had not filed an affidavit in support of his application.