The Supreme Court's recent decision in R v JAA, 2011 SCC 17 offers some insight into the application of the fresh evidence test and provides some ground for debate - or at least reflection - about "due diligence"...or does it?

JAA was charged with sexual assault related offences. The defence centred around his position that the sex was consensual. The complainant testified that she had bitten the appellant on the finger. An officer testified that there was indeed a mark on the appellant's finger and that it looked like a bite mark. JAA was convicted in what the trial judge admitted was a "close one" [para 10].

JAA appealed and sought to introduce fresh evidence. A majority of the Ontario Court of Appeal [2010 CarswellOnt 4840] would not have allowed the fresh evidence. Charron J, on behalf of the majority of the Supreme Court, allowed the fresh evidence and ordered a new trial.

The test for the admission of fresh evidence, set out in R v Palmer, [1980] 1 SCR 759, 1979 CarswellBC 533 requires consideration of the following four factors: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (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.

At the Supreme court the majority and dissent disagreed on the fourth factor and parted ways as well on the importance of the first factor.

With respect to the first factor, Charron J noted that "[t]rial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client’s finger, as it seemed to him that 'the mark was a minor generic scratch' which in fact appeared inconsistent with the complainant’s testimony" [para 8]. Admittedly the due diligence criterion could not be met but Charron J held that "the due diligence criterion should not trump the other Palmer criteria, particularly in circumstances such as here where trial counsel’s strategy was not unreasonable given the nature of the anticipated Crown evidence" [para 8].

In dissent Rothstein J agreed that the due diligence criterion should not trump the other factors, but noted that "[n]either...should it be ignored" [para 26].

Before turning to consider the due diligence test, it is first interesting to note that the majority of the Supreme Court and the majority of the Court of Appeal appear to have taken different views of the affidavit of trial counsel.

The majority of the Court of Appeal noted that "in an affidavit prepared for the fresh evidence application, [trial counsel] indicated that he had considered and rejected the possibility of retaining an expert to analyze the mark" [emphasis added] [para 33]. In dissent Winkler CJO also appears to have interpreted the affidavit to suggest that trial counsel did consider, but chose not to, consult an expert [para 69].

At the Supreme Court, the majority noted that "[t]rial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client’s finger" [emphasis added] [para 8].

It seems difficult to reconcile the different interpretations of the affidavit by the majority of the Supreme Court and the Ontario Court of Appeal. The Ontario Court of Appeal clearly understood that trial counsel did consider, but chose not to, retain an expert. Charron J appears to have understood that trial counsel did not consider retaining an expert.

Perhaps its just semantics. Although Charron J clearly noted that trial counsel "did not consider retaining" an expert, perhaps she meant that although he was aware of the issue he chose not to pursue it by retaining an expert.

If that is the case - that trial counsel did consider but chose not to call an expert - it begs the question: was this simply not a strategic decision?

If this was a strategic decision, despite the fact that it may have changed the verdict, the caution, noted by Rothstein J in dissent, from R v PSM, 1992 CarswellOnt 803 (CA) is worth repeating:

Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record.

On the other hand, perhaps it is about due diligence. Perhaps trial counsel was not duly diligent in retaining the expert and obtaining an opinion prior to trial. Perhaps, even if it was a strategic decision, it was not a fully informed one and therefore not duly diligent.

In that case, it is worth noting that, with respect to whether this evidence would have affected the verdict, although the five member majority found it would have, four other judges (two at the Court of Appeal and two dissenting at the Supreme Court) felt differently. Those four judges felt that the fresh evidence would not have affected the verdict.

In the present case counsel was aware of the potential issue. Was of the view that the complainant - in a he said she said case - could be contradicted by expert evidence. Due diligence would have resulted in retaining an expert. Counsel was not duly diligent. The ultimate impact of that evidence is of great debate. A debate that may be settled at a new trial when counsel will undoubtedly take advantage of the opportunity to call the evidence that should have been called at the first trial.

Perhaps the outcome is the right one - after all the search for the truth is at the heart of the criminal justice system; as the famous proverb notes, "truth fears no trial". Regardless, the decision still raises some concerns: what does it mean about the interplay between due diligence and strategic decision making? what has it said about the standard for due diligence; and has this decision greased the edge of the slippery slope recognized in PSM?

DG Mack