Recent Supreme Court Decision Confirms The Appropriate Test For Admitting New Evidence On Appeal

• Published date: 28 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Lawson Lundell LLP
• Author: Andrea Lutsch and Brendan Harris

In a highly anticipated decision, the Supreme Court of Canada (the "SCC") in Barendregt v Grebliunas, 2022 SCC 22 confirmed the appropriate test for admitting additional evidence on appeal.

This decision confirms that the long-standing test set out in R.v. Palmer, [1980] 1 SCR 759, applies both to evidence that existed at the time of trial but was not adduced at that time, and to "new" evidence that came into existence following the trial.

In Palmer, it was established that four criteria ought to be used to determine if appellate courts should exercise their discretion to admit additional evidence on appeal:

1. the evidence could not, by the exercise of due diligence, have been obtained for the trial;
2. the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
3. the evidence is credible in the sense that it is reasonable capable of belief; and
4. the evidence is such that, if believed, it could have affected the result at trial.

Barendregt deals with a family law dispute where the British Columbia Court of Appeal (the "BCCA") considered whether to admit evidence not adduced at trial. The BCCA characterized this evidence as "new" and therefore did not apply the test set out in Palmer.

The SCC overturned the BCCA's decision and confirmed that the test established in Palmer ought to have been applied.

Key Takeaways from Barendregt:

1. The same test applies to evidence that existed at the time of trial and to "new" evidence:

The SCC found that the lower court erred in drawing a distinction between "new evidence" that was not in existence at the time of trial and "fresh evidence" that was in existence at the time of trial but was not adduced at that time.¹

The SCC in Barendregt has eliminated the inconsistent distinction that had emerged in the case law between "fresh" and "new" evidence. The Palmer test now applies "regardless of when the evidence or the specific fact came into existence."²

2. The Palmer test appropriately balances competing interests:

In deciding whether to admit evidence on appeal, the SCC identified that the overriding consideration is the interests of justice.³ The SCC held that the test set out in Palmer reconciles the tension between two foundational principles: the need for finality and order, and the interest in reaching a just result.⁴

Courts must reconcile the truth-seeking function of our judicial system with the need to prevent the possibility of witnesses "simply repudiating or changing [their] trial...