Section 683(1) of the Criminal Code allows an appellate court to receive evidence on appeal “where it considers it in the interests of justice”. It is well-established that it is frequently not “in the interests of justice” to allow an accused to introduce evidence on appeal that would have been introduced at trial but for a “tactical decision”. But what is a “tactical decision”? R. v. P.G., 2013 ONCA 520  recently considered this issue.

The accused had been convicted of a sexual assault that allegedly occurred on a boat. The complainant, the accused and the accused’s son were the only people on the boat. The accused did not call his son as a witness, instead relying on his own evidence, as well as a vigorous attack on the complainant’s credibility. On appeal, the accused sought to introduce an affidavit of his son that in part collaborated his version of events and, more importantly, undermined the complainant’s version of events.

Epstein J.A. stated the law with respect to introducing fresh evidence on appeal:

[40]      … The appellate court’s discretion to accept fresh evidence should be informed by the appellant’s interests in pursuing his appellate remedies and by the interests of the administration of justice. Those interests include ensuring not only that verdicts are reliable but also that the appellate process is not routinely used to re-write the evidentiary trial record.  To allow the process to be re-opened too easily jeopardizes the validity of all verdicts: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449 at paras. 106-107; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211 at para. 44.

[41]      Admitting evidence on appeal of facts that were litigated at trial is very much the exception (R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.)) and is justified only in furtherance of the integrity of the process: Snyder at para. 44.

[42]      In its recent decision in Snyder, drawing on both the well-known decision in R. v. Palmer and Palmer, [1980] 1 S.C.R. 759 at p. 775 and the more recent case of Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321 at para. 92, this court at para. 45 described the admissibility of fresh evidence on appeal as an exercise in discretion involving the answer to three questions:

Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]

Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]

What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal?  [the due diligence inquiry]

[43]      The first two components of the test are directed at preconditions to the admissibility of fresh evidence under s. 683(1). Evidence that is not admissible under the usual rules of evidence governing criminal proceedings, or is not sufficiently cogent to potentially affect the verdict, cannot be admitted on appeal: Truscott at para. 93.

[44]      This court’s judgment in Truscott at para. 93 characterizes the last component, often referred to as the due diligence requirement, not as a precondition of admissibility but as a factor that must be examined only if the evidence meets the other two preconditions.  …  The explanation offered for the failure to adduce evidence at trial, or in some cases the absence of any explanation, can result in the exclusion of evidence that would otherwise be admissible on appeal: Truscott at para. 93.

In this case, there was no question that the affidavit was admissible under the rules of evidence. The Crown nonetheless argued that the evidence was insufficiently cogent, as it was not strong enough to have affected the verdict and, moreover, a particularly high degree of cogency was required in this case because the decision not to call the son as a witness was a tactical one. Epstein J.A. disagreed, noting that it was not possible to assess the reliability or credibility of the son’s evidence, but it was not so clearly incredible or unreliable to warrant outright rejection. She held it met the criterion of being “reasonably capable of belief” and it could have affected the result in a trial where she viewed the comparative credibility of the accused and the complainant as the determinative issue.

Turning to the final criteria, Epstein J.A. held that:

[57] The third question, the explanation provided for why the evidence was not adduced at the trial, is applied less strictly against an accused who appeals conviction than it is for other categories of appellants.  For example, if the proffered evidence is sufficiently cogent to warrant an acquittal, fresh evidence should be received on appeal even though it was available at trial. However, if the evidence were available at trial but not led for tactical reasons, the cogency requirement takes on greater importance.

The accused deposed that he did not call his son as a witness because he was worried it would have a negative consequence on his son, who was in the middle of highly contentious family court proceedings between the accused and the boy’s mother. A family court judge admonished the accused for even considering calling his son as a witness in the criminal trial and having his son speak to his lawyer.

In the face of these facts, Epstein J.A. decided:

[60]      There is room for debate over whether the third test will be met where the evidence demonstrates that a child is available to testify at trial but, for some reason, may suffer harm if called as a witness in a trial involving one or both parents.  In this case it is alleged that the potential harm would arise out of the fact that the child, at the time of the trial, was at the centre of high-conflict family proceedings.  The debate would involve a number of considerations including the likelihood of the risk, the nature and degree of potential harm to the child and the quality of the evidence necessary to establish the risk.

[61]      However, I am of the view that this debate does not have to be addressed in order to decide this appeal as I am satisfied that the third test is met.

[62]      First, I am not prepared to accept the Crown’s argument that the decision not to call the son was a tactical one and that therefore the proposed fresh evidence must reach a higher level of cogency in order to be admitted.

[63]      The testimony of the appellant’s trial counsel set out above, when considered in the context of all of the evidence relevant to the fresh evidence application, supports the appellant’s argument that his primary reason for not following his lawyer’s advice to have his son called as a witness was out of concern over the impact that testifying would have on his son.  As the trial progressed, the appellant became more optimistic that the jury would return a verdict of not guilty.  However, in my view the fact that this optimism influenced the appellant’s ultimate decision not to require his son to testify does not mean the decision was strategic. The evidence satisfies me that the appellant’s primary reason for deciding that his son should not be called as a witness – his son’s best interests – did not change. What changed were the implications of protecting his son from the consequences not only of testifying in a trial let alone one of this nature but also of being forced to do something that would likely exacerbate the legal difficulties in which he and his parents were involved.  In these circumstances I do not view the decision not to call the son as a witness at the trial as amounting to a tactic that should affect the assessment of the admissibility of the proposed fresh evidence.

[64]      As I see it, it would be contrary to the ends of justice not to receive the son’s proposed evidence.  His testimony is effectively the only evidence relevant to the sole issue – consent – aside from that of the appellant and complainant.  It is reasonably capable of belief. If it is believed or if it raises a reasonable doubt, the son’s evidence could well affect the outcome of a prosecution in which the appellant faces a serious charge that attracts serious consequences.

[65]      In exercising this court’s broad discretion I would allow the application to admit the proposed fresh evidence.

This case thus shows that determining what is a “tactical decision” not to adduce evidence at trial is necessarily contextual and will be applied flexibly, particularly when liberty interests of the accused are at stake.