Canadian appeal court decision in sexual assault case

Hon. James O'Reilly

Structural issues have been at the forefront of discussion in the United States about how to stem the tide of sexual assault cases. Refreshingly, here's a February 24, 2014 decision of the Court Martial Appeal Court of Canada where the debate falls into familiar doctrinal territory, including the admission of new evidence on appeal and the right to effective assistance of counsel. In Thibeault v. Canada, 2014 CMAC 2, the court, per O'Reilly, J.A., wrote:

Naturally, appellate courts are reluctant to introduce new evidence on appeal. All relevant and available evidence should normally be put before the trier of fact at trial to determine whether the Crown has met its burden of proving guilt beyond a reasonable doubt. However, there are exceptions. One is where the evidence was not tendered at trial because the accused’s defence counsel recommended against it, counsel’s advice was incompetent and, because the evidence could have raised a reasonable doubt about the accused’s guilt, the result was a miscarriage of justice.

The general test for the admission of fresh evidence on appeal comprises four criteria, originally set out in R v Palmer, [1980] 1 SCR 759:

1.         The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

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, and

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.

The court unanimously ruled that the proffered new evidence should be admitted, and allowed the appeal, set aside Sub-Lieutenant Thibeault's conviction and ordered a new trial.