Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)
There are two
ways in which fresh evidence may become admissible on appeal:
(1) Dixon Test:
On the basis of non-disclosure giving rise to a breach of the right to make
full answer and defence. This is governed by the test first set out in Dixon,
(the
“Dixon test”); or
(2) Palmer Test:
On the basis that the cogency of the evidence is such that it warrants
admission and the interests of justice require that it be received. This
is governed by the test first set out in R. v. Palmer, [1980] 1
S.C.R. 759 (the "Palmer test")..
The Dixon Test
There are two components
to the Dixon test.
1. Did the Crown breach
its duty to disclose?
If the court
concludes that, at the relevant time, the Crown failed in its disclosure
obligations, then Dixon requires
that the court go on to consider the following:
2. Was there a “reasonable possibility” that the non-disclosure:
(a) impacted the outcome
of the trial; or
(b) impacted the overall
fairness of the trial process?
R. v. Taillefer, 2003 SCC 70, [2003] 3
S.C.R. 307, at paras. 71, 78;
See also Dixon, R. v. Dixon,
1998 CanLII
805 (SCC), [1998]at paras. 34-35.
Although, a
reasonable possibility must be more than "entirely speculative" in
nature, the mere existence of such a possibility constitutes an infringement of
the right to make full answer and defence: Taillefer, at para. 78.
Stuart O’Connell, O’Connell
Law Group, www.leadersinlaw.ca (all
rights reserved to author).
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