R. v. Lévesque

R. v. Lévesque
Collection
Supreme Court Judgments
Date
2000-10-12
Neutral citation
2000 SCC 47
Report
[2000] 2 SCR 487
Case number
26939
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 26939
Decision Content
R. v. Lévesque, [2000] 2 S.C.R. 487
Her Majesty The Queen Appellant
v.
Renaud Lévesque Respondent
Indexed as: R. v. Lévesque
Neutral citation: 2000 SCC 47.
File No.: 26939.
2000: March 23; 2000: October 12.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Evidence ‑‑ Fresh evidence ‑‑ Appeals against sentence ‑‑ Criteria applicable to admission of fresh evidence on appeal from sentence ‑‑ Whether criteria are the same regardless of whether appeal relates to verdict or to sentence ‑‑ Whether Court of Appeal erred in admitting fresh evidence.
The accused pleaded guilty to 15 counts arising from a robbery at a residence. He was sentenced to several terms of imprisonment to be served concurrently, the longest of which was a term of ten years and six months for kidnapping. In appealing his sentence, the accused is seeking to have two new reports admitted in evidence to which the Crown objects. The first was prepared by a psychologist for Correctional Service Canada, and the second was written by a psychiatrist at the accused’s request. The Court of Appeal unanimously held that the trial judge committed an error in sentencing by comparing this case with cases involving hostage‑taking — a finding that is not in issue in this appeal. The majority of the Court of Appeal also allowed the motions to adduce fresh evidence and, in view of the error by the trial judge, substituted a sentence of five years and six months for the sentence of ten years and six months imposed by the trial judge.
Held (Arbour J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache and Binnie JJ.: Although the rules concerning sources and types of evidence are more flexible in respect of sentence, the criteria for admitting fresh evidence on appeal are the same regardless of whether the appeal relates to a verdict or a sentence. If a court of appeal thinks fit to admit fresh evidence, it will do so because it is in the interests of justice to admit it. The criteria set out in Palmer call for a relaxed and flexible application and to relax them any further would be contrary to the interests of justice. These criteria, including the due diligence criterion, are therefore applicable to applications to tender fresh evidence in an appeal from a sentence. Moreover, while the admission of fresh evidence in an appeal from a sentence cannot lead to a new trial, unlike admission of fresh evidence in an appeal from a verdict, this difference does not justify the application of different tests. The integrity of the criminal process and the role of appeal courts could be jeopardized by the routine admission of fresh evidence on appeal. A two‑tier sentencing system incompatible with the high standard of review applicable to appeals from sentences and the underlying profound functional justifications would thus be created.
In the context of the admission of fresh evidence on appeal, the concepts of admissibility and probative value overlap. To be admissible, fresh evidence must be relevant and credible and, when taken with the other evidence adduced at trial, be expected to have affected the result. The probative value of fresh evidence must thus be considered in order to determine whether it is admissible on appeal. To facilitate determination of the probative value of fresh evidence, the party challenging it should test it by making a formal motion to the court of appeal and explaining how it wishes to proceed. The court of appeal may in this regard exercise all the powers set out in s. 683 of the Criminal Code . Failure by a party to test fresh evidence does not relieve a court of appeal from applying the criteria established in Palmer.
The strict rules of a trial do not apply to a sentencing hearing, since to determine the appropriate sentence the judge must have as much information as possible about the accused. The Palmer criteria do not compromise the more flexible nature of the rules, since the criteria concerning the admission of fresh evidence on appeal do not relate to the sources and types of evidence. The purpose of the due diligence criterion is to protect the interests and the administration of justice and to preserve the role of appeal courts. Before admitting new opinion evidence on appeal, it may be necessary to determine the basis of that opinion and to establish whether the facts on which the opinion is based have been proven and are credible. Whether or not consent is given, the production of fresh evidence on appeal is possible only with the leave of the court of appeal. The court of appeal may properly take into account the fact that the Crown has consented or that admission is uncontested particularly when assessing the relevance, credibility and probative value of fresh evidence.
In this case, the majority of the Court of Appeal found that the two reports were admissible because they provided greater detail or shed additional light on the evidence adduced at trial. These grounds are inadequate to justify the admission of the reports, since they could justify the admission of a very broad range of additional evidence on appeal, which would be contrary to the Palmer criteria and the limited role of appellate courts in respect of sentencing. The reports should not have been admitted in evidence, since their probative value was not such that they might have affected the result if they had been adduced at trial with the other evidence. The probative value of an expert opinion depends on the amount and quality of admissible evidence on which it relies. Both the psychologist and the psychiatrist, whose report also does not meet the due diligence criterion, based their opinions on a version of the facts that was not established or adopted at trial.
For the reasons stated by the dissenting judge in the Court of Appeal, it is, however, appropriate to substitute a sentence of imprisonment of eight years and six months for the sentence imposed by the trial judge in view of the error he committed in sentencing.
Per Arbour J. (dissenting): The Court of Appeal was entitled to admit the reports. The trial judge fundamentally mischaracterized the principal crime of which the accused had been convicted in determining the just and appropriate sentence, with the result that the Court of Appeal was, for all intents and purposes, required to sentence afresh. In these specific circumstances, it was for the Court of Appeal to equip itself, pursuant to its broad statutory discretion under s. 683(1) of the Criminal Code , with whatever evidence it deemed fit and necessary to decide the question of sentence. In view of the fundamental error committed by the trial judge, the principles governing the admission of fresh evidence in appeals against sentence articulated by the majority are not germane to the disposition of this appeal. Further, the majority’s stringent application of Lavallee was disagreed with. The nature of the sentencing process, and of the statutory rules that govern it, contemplate that the sentencing court should have the benefit of the fullest possible information concerning the background of the offender, from the widest array of sources. It is therefore inappropriate to tie the probative value of evidence tendered under these rules to the probative value of evidence proffered at trial, and thus, more specifically, to assess the weight of an expert opinion on the basis of the quantity and quality of non‑hearsay evidence introduced to support that opinion. A sentencing court must be entitled to receive and rely on any credible and trustworthy evidence which assists it in obtaining as complete an understanding of the offender as possible. The extent to which evidence presented on sentencing conflicts with the facts upon which the conviction was founded is a matter for the sentencing court to take into consideration, but is not, as such, a matter for exclusion of the evidence in question. Here it was open to the Court of Appeal to find both reports sufficiently credible and trustworthy to assist in the development of a fuller picture of the accused, based as they were on the experts’ face‑to‑face psychological assessment and evaluation of the former.
Cases Cited
By Gonthier J.
Followed: Palmer v. The Queen, [1980] 1 S.C.R. 759; referred to: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402; R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Hogan (1979), 50 C.C.C. (2d) 439; R. v. Edwards (1996), 105 C.C.C. (3d) 21; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lockwood (1971), 5 C.C.C. (2d) 438; R. v. Irwin (1979), 48 C.C.C. (2d) 423; R. v. Langille (1987), 77 N.S.R. (2d) 224; R. v. Archibald (1992), 15 B.C.A.C. 301; R. v. Lemay (1998), 127 C.C.C. (3d) 528; R. v. Gauthier, [1996] Q.J. No. 952 (QL); R. v. McDow (1996), 147 N.S.R. (2d) 343; R. v. Riley (1996), 107 C.C.C. (3d) 278; R. v. Mesgun (1997), 121 C.C.C. (3d) 439; Morris v. The Queen, [1983] 2 S.C.R. 190; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Berry (1997), 196 A.R. 398; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. McAnespie, [1993] 4 S.C.R. 501.
By Arbour J. (dissenting)
R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 683 , 687 , 721 [rep. & sub. 1995, c. 22, s. 6; am. 1999, c. 25, s. 16], 722(2) [rep. & sub. 1995, c. 22, s. 6], 723(5) [idem], 724(1) [idem].
Authors Cited
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Ruby, Clayton C. Sentencing, 5th ed. Toronto: Butterworths, 1999.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Quebec Court of Appeal (1998), 130 C.C.C. (3d) 107, [1998] Q.J. No. 2680 (QL), J.E. 98‑2019, allowing the accused’s appeal against his sentence. Appeal allowed, Arbour J. dissenting.
Henri‑Pierre Labrie and Dannie Leblanc, for the appellant.
Pauline Bouchard, for the respondent.
English version of the judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier,* Iacobucci, Bastarache and Binnie JJ. delivered by
Gonthier J. —
I. Issue
1 This appeal concerns the rule that applies to the admission of fresh evidence on appeal from a sentence. In Palmer v. The Queen, [1980] 1 S.C.R. 759, this Court set out the principles governing the admission of fresh evidence on appeal from a verdict. In the case at bar, it must be determined whether the criteria that apply are the same for both types of appeal, and whether the majority of the Court of Appeal erred by admitting in evidence the two expert reports tendered by the respondent, despite the objections of the appellant.
II. Facts
2 On June 22, 1996, the respondent and his two accomplices went to the home of the Fortier family intending to make off with large amounts of money that he believed were kept in a safe. While these three individuals were in the shed located behind the house, they were surprised by David Fortier, aged thirteen. After grabbing him and tying him up, the respondent questioned him about the location of the safe and the people who were in the house. He put a shotgun cartridge in his mouth, which he then taped shut, and threatened him several times, both verbally and with his gun. The respondent then left the shed, taking David, with his gun pointed at the boy’s head, and escorted him towards the house. The two accomplices followed. Once the respondent was inside the house, he attacked Bertrand Fortier, David’s father, as he sat watching television with his wife. A fight broke out and a shot was fired in the fray. While this was going on, the two accomplices fled and one of the Fortier boys called the police. Mr. Fortier ultimately wrestled the respondent to the ground and the police arrived shortly afterward.
3 On December 18, 1996, the respondent pleaded guilty to fifteen counts arising from the events of June 22, 1996. In appealing his sentence, the respondent is seeking to have three new reports admitted in evidence. The first, dated April 3, 1997, is entitled [translation] “Psychological/psychiatric assessment report”. This report was prepared by Marc Daigle, a psychologist, for Correctional Service Canada. The second report was written by Louis Morissette, a psychiatrist, at the respondent’s request. It is dated March 17, 1998. The appellant objects to the admission of these two reports in evidence, but consents to the admission of the third report, which is by Jacques Bigras, a psychologist. That report is dated March 31, 1998, and was prepared for Correctional Service Canada at the end of a course taken by the respondent during his incarceration.
III. Relevant Legislation
4 The relevant provisions of the Criminal Code, R.S.C., 1985, c. C‑46 , are as follows:
683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,
(a) order the production of any writing, exhibit or other thing connected with the proceedings;
(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or,
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal.
IV. Proceedings
A. Court of Québec, Criminal and Penal Division, No. 505‑01‑008036‑960, February 19, 1997
5 On December 18, 1996, the respondent pleaded guilty to charges of kidnapping, confinement, assault with a weapon, uttering threats, disguise with intent, pointing a firearm, possession of an unregistered restricted weapon, robbery, breaking and entering a dwelling-house, and conspiracy to commit robbery. After the guilty pleas were entered, Judge Yves Lagacé ordered that a pre-sentence report be prepared pursuant to s. 721 of the Criminal Code . On February 19, 1997, after hearing submissions from both counsel and the testimony of Bernard Fortier, the accused’s brother, the probation officer Philippe David, and the respondent himself, Judge Yves Lagacé sentenced the respondent to several terms of imprisonment to be served concurrently. The longest sentence was imprisonment for a term of ten years and six months on the kidnapping charge.
B. Quebec Court of Appeal, [1998] Q.J. No. 2680 (QL)
6 On appeal, the respondent filed two motions seeking leave to adduce fresh evidence, in the form of the reports by Marc Daigle, a psychologist, and Louis Morissette, a psychiatrist. On April 6, 1998, a panel of three judges of the Court of Appeal (Beauregard, Gendreau and Baudouin JJ.A.) referred that request to the panel that would determine the application to appeal the sentence.
7 These motions were heard by Deschamps, Chamberland and Nuss JJ.A. on July 8, 1998. They unanimously allowed the application for leave to appeal, since in their view the trial judge had erred by comparing this case with cases involving hostage‑taking for ransom in determining the appropriate sentence. That finding is not in issue in this appeal. The majority of the Court of Appeal also allowed the motions to adduce fresh evidence, Chamberland J.A. dissenting.
1. Deschamps J.A. (Nuss J.A. concurring)
8 After stating that the principles laid down in Palmer, supra, are to be applied more flexibly in criminal cases than in civil cases, and that the provisions governing the admission of fresh evidence on appeal are different, depending on whether the Court is ruling in respect of a verdict (s. 683 of the Criminal Code ) or a sentence (s. 687 of the Criminal Code ), Deschamps J.A. said that a liberal approach must be taken on an appeal from a sentence when the admissibility of fresh evidence is in dispute. At para. 12, she concluded: [translation] “while the two sections [ss. 683 and 687 of the Criminal Code ] do not establish different rules, it is my view that at the very least the wording of s. 687 prescribes a flexible and liberal approach”.
9 Deschamps J.A. was of the opinion that the report prepared by the psychologist, Marc Daigle, met the requirements for admissibility. She noted that the appellant did not ask to have this assessment done and that the report was written less than two months after the probation officer’s report, which was submitted to the trial judge. In addition, the report could not have been tendered at trial, since the psychological assessment takes place after sentencing. She says at para. 15:
[translation] While it is true that the appellant could have requested a separate expert opinion following receipt of the pre-sentence report, I cannot criticize him for failing to do so since, first, the appellant could not have foreseen that Mr. Daigle would have had an opinion diametrically opposed to that of Mr. David and, second, that would amount to encouraging competing expert opinions in cases where accused persons are dissatisfied with pre-sentence reports.
Ultimately, Deschamps J.A. felt that it was in the interests of justice to admit the psychologist’s report by Mr. Daigle in evidence, since [translation] “it explains the appellant’s past in greater detail and shows his personality from a perspective that was not evident in the trial record. Whereas the pre-sentence report refers to a significant probability of reoffending, the psychologist’s report by Mr. Daigle states the opposite” (par. 16).
10 According to Deschamps J.A., the admissibility of the report prepared by the psychiatrist, Dr. Morissette, was more debatable. She commented that the report was prepared at the respondent’s request and that thirteen months had intervened between sentencing and the preparation of the report. She also stated that the portion of the report in which Dr. Morissette responded to the probation officer’s report did not carry much weight. Nonetheless, she determined that the report was admissible, since it shed additional light on Mr. Daigle’s report.
11 In view of the error committed by the trial judge and in light of the fresh evidence, Deschamps J.A. substituted a sentence of five and a half years for the sentence of ten and a half years imposed by Judge Lagacé.
2. Chamberland J.A. (dissenting)
12 In the view of Chamberland J.A., the reports by Mr. Daigle and Dr. Morissette should not be admitted in evidence. It was his opinion that the respondent, by exercising minimal diligence, could have sought other opinions for the purpose of countering the probation officer’s opinion concerning his personality and submitted them to the trial judge. At para. 31 he stated:
[translation] I appreciate that the provisions governing fresh evidence differ depending whether the Court is being asked to rule as to guilt (section 683 Cr. C.) or the sentence (section 687 Cr. C.) but not, in my view, to the point that the Court must, unless there are completely exceptional circumstances (which are not found in the case at bar) or unless, of course, the other party consents, admit evidence that was readily available at trial (R. v. Stolar, [1988] 1 S.C.R. 480; Palmer and Palmer v. R., [1980] 1 S.C.R. 759). In short, it is my view that the present adversarial debate concerning the appellant’s personality should have been conducted at trial rather than on appeal.
13 In view of the error committed by the trial judge in sentencing, Chamberland J.A. would have substituted a sentence of imprisonment for eight years and six months for the sentence imposed by Judge Lagacé. He allowed the motion to submit fresh evidence for the sole purpose of admitting in evidence the report by Jacques Bigras, the psychologist.
V. Analysis
A. The Criteria Laid Down in Palmer
14 In Palmer, supra, this Court considered the discretion of a court of appeal to admit fresh evidence pursuant to s. 610 of the Criminal Code , the predecessor of s. 683 . After emphasizing that, in accordance with the wording of s. 610 , the overriding consideration must be “the interests of justice”, McIntyre J. set out the applicable principles, at p. 775:
(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: see McMartin v. The Queen.
(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.
In R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 410, Doherty J.A. wrote the following concerning these principles:
The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the admissibility of “fresh” evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence: McMartin v. The Queen, supra, at pp. 148‑50; R. v. Palmer, supra, at p. 205.
In my view this is a good description of the way in which in the principles set out in Palmer interact.
15 This court was recently asked to apply these criteria in R. v. Warsing, [1998] 3 S.C.R. 579. In that case, the British Columbia Court of Appeal determined that the accused had not satisfied the due diligence criterion and refused to admit fresh evidence. At para. 51, Major J., for the majority, pointed out that due diligence is only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. In other words, failure to meet the due diligence criterion should not be used to deny admission of fresh evidence on appeal if that evidence is compelling and it is in the interests of justice to admit it.
B. Criteria Applicable to Appeals Against Sentence
16 Relying on the different wording of ss. 683 and 687 of the Criminal Code and the fact that the words used in s. 687 , in her view, convey [translation] “a much more discretionary connotation” (para. 10), Deschamps J.A. expressed the view that the rules set out in Palmer are to be applied more flexibly in an appeal from a sentence. With respect, I do not share that view. Although the rules concerning sources and types of evidence are more flexible in respect of sentence, the criteria for admitting fresh evidence on appeal are the same, regardless of whether the appeal relates to a verdict or a sentence.
17 For purposes of comparison, I will reproduce again the relevant passages of ss. 683 and 687 of the Criminal Code :
683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, . . .
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, . . . [Emphasis added.]
At first glance, it seems to me that the applicable criterion is not different: see R. v. Hogan (1979), 50 C.C.C. (2d) 439 (N.S.C.A.), at p. 449; and R. v. Edwards (1996), 105 C.C.C. (3d) 21 (Ont. C.A.), at p. 27. If a court of appeal thinks fit to admit fresh evidence, it will do so because it is in the interests of justice to admit it. Furthermore, I do not see how the discretion conferred on courts of appeal by s. 687 could be broader than the discretion conferred by s. 683 since, if such were the case, courts of appeal could exercise their discretion in a manner contrary to the interests of justice. However, it is assumed that the legislator did not intend statutes to apply in a way contrary to justice: P.‑A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 373. Like McIntyre J. in Palmer, supra, at p. 775, I believe that the overriding consideration must be the interests of justice, regardless of whether the appeal is from a verdict or a sentence.
18 In any case, it is my belief that the criteria stated by this Court in Palmer already call for a relaxed and flexible application and could hardly be relaxed any further. In accordance with the last three criteria, a court of appeal may admit only evidence that is relevant and credible, and could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. If these criteria were made more flexible, it would be open to a court of appeal to accept evidence that was not relevant or credible, and that could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result to which they led at trial. In my view, it would serve no purpose and be contrary to the interests of justice to introduce this kind of flexibility.
19 Failure to satisfy the first criterion, due diligence, is not always fatal. As Major J. said in Warsing, supra, at para. 51:
It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.
This passage clearly shows that the due diligence criterion must be applied flexibly. In my view, it is not necessary to make it more flexible in the context of appeals from sentence. While due diligence is not a necessary prerequisite for the admission of fresh evidence on appeal, it is an important factor that must be taken into account in determining whether it is in the interests of justice to admit or exclude fresh evidence. As Doherty J.A. said in M. (P.S.), supra, at p. 411:
While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit “fresh” evidence. The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused’s interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. 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. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of “fresh” evidence on appeal has been stressed: McMartin v. The Queen, supra, at p. 148.
The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing the admissibility of “fresh” evidence on appeal.
In my view, these considerations are equally relevant in the context of an appeal from sentence. Accordingly, due diligence in producing fresh evidence is a factor that must be taken into account in an appeal from sentence, on the same basis as the other three criteria set out in Palmer.
20 While the admission of fresh evidence in an appeal from a sentence cannot lead to a new trial, unlike admission of fresh evidence in an appeal from a verdict (see the wording of ss. 687 and 683 of the Criminal Code ), I do not believe that this difference justifies the application of different tests. The integrity of the criminal process and the role of appeal courts could be jeopardized by the routine admission of fresh evidence on appeal, since this would create a two‑tier sentencing system. That kind of system would be incompatible with the high standard of review applicable to appeals from sentences and the underlying “profound functional justifications”: see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91. Despite the fresh evidence, the sentencing judge, unlike the appeal judge, has the benefit of being able to directly assess the other evidence, the testimony and the submissions of the parties, as well as being familiar with the needs and current conditions of and in the community where the crime was committed: see M. (C.A.), supra, at para. 91. Furthermore, appeal courts are not the appropriate forum in which to determine questions of fact, and they should do so only when the fresh evidence presents certain characteristics such as would justify expanding their traditional role. This Court has already identified those characteristics, in Palmer. In my view, whether the appeal relates to a verdict or a sentence, the criteria laid down by this Court in Palmer are the criteria that are to be applied where a court of appeal is determining whether to admit fresh evidence.
21 In addition to citing the different wording of ss. 683 and 687 of the Criminal Code , Deschamps J.A. refers to cases decided in other provinces. A number of courts of appeal have considered the issue of admission of fresh evidence on an appeal from a sentence: see R. v. Lockwood (1971), 5 C.C.C. (2d) 438 (Ont. C.A.); Hogan, supra; R. v. Irwin (1979), 48 C.C.C. (2d) 423 (Alta. C.A.); R. v. Langille (1987), 77 N.S.R. (2d) 224 (C.A.); R. v. Archibald (1992), 15 B.C.A.C. 301; R. v. Lemay (1998), 127 C.C.C. 528 (3d) (Que. C.A.); R. v. Gauthier, [1996] Q.J. No. 952 (QL) (C.A.); R. v. McDow (1996), 147 N.S.R. (2d) 343 (C.A.); Edwards, supra; R. v. Riley (1996), 107 C.C.C. (3d) 278 (N.S.C.A.); and R. v. Mesgun (1997), 121 C.C.C. (3d) 439 (Ont. C.A.). Some courts of appeal have maintained that the criteria to be applied are the same, whether the appeal relates to a verdict or a sentence: see Hogan, supra, at p. 449, and Edwards, supra, at p. 27. Others have stated that the rules relating to the admission of fresh evidence were applied more flexibly or informally in the context of an appeal from a sentence: see Hogan, supra, at p. 453; Langille, supra; Edwards, supra, at p. 28; and Riley, supra, at p. 283. However, a careful review of the jurisprudence reveals that, far from applying different criteria, courts of appeal have invariably applied the criteria set out in Palmer, whether expressly or by implication (for examples of the application of the due diligence criterion, see Lockwood, Hogan, Irwin, Langille, Edwards and Mesgun; for examples of the application of the relevance criterion, see Edwards and Lemay; and for an example of the application of the criteria relating to credibility and effect on the result, see Langille). In addition, as I have already explained, it is neither desirable nor really possible to relax the rule laid down in Palmer, in view of its inherent flexibility and the requirements associated with the interests of justice.
22 I therefore find that the criteria set out in Palmer are applicable to applications to tender fresh evidence in an appeal from a sentence. Before applying these criteria to the two reports in the case at bar, I believe it is worthwhile to briefly discuss the concepts of admissibility and probative value in the context of the admission of fresh evidence on appeal, as well as certain specific characteristics of the sentencing process.
C. The Concepts of Admissibility and Probative Value
23 In the law of evidence, admissibility and probative value are two separate concepts: see Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 192 (McIntyre J.) and 203 (Lamer J.). The general principle that applies in respect of admissibility is that relevant evidence is admissible unless it is subject to any exclusionary rule: see Morris, supra, at p. 201, and J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 23. The probative value of admissible evidence is a question for the trier of fact: Morris, supra, at p. 193 (McIntyre J.).
24 In the context of the admission of fresh evidence on appeal, however, the concepts of admissibility and probative value overlap. To be admissible, it is not sufficient that the fresh evidence meet the prerequisite of relevance. It must also be credible and such that it could, when taken with the other evidence adduced at trial, be expected to have affected the result. Accordingly, the probative value of the fresh evidence must, to some degree, be reviewed by a court of appeal when it is determining the admissibility of the fresh evidence. The question to be considered was expressed as follows by McIntyre J. in Palmer, supra, at pp. 776‑77:
If presented to the trier of fact and believed, would the [fresh] evidence possess such strength or probative force that it might, taken with the other evidence adduced, have affected the result? [Emphasis added.]
See also McMartin v. The Queen, [1964] S.C.R. 484, at p. 491, and R. v. Stolar, [1988] 1 S.C.R. 480, at pp. 491‑92. The assessment of the probative value of the fresh evidence is, however, limited, since after determining that the evidence is credible, the court of appeal must assume that the trial judge would have believed it. If the fresh evidence is admitted, the court of appeal must again consider its probative value as well as the probative value of all the other evidence in order to determine whether the sentence imposed by the trial judge was “demonstrably unfit”: R. v. Shropshire, [1995] 4 S.C.R. 227, at paras. 46 and 50; M. (C.A.), supra, at para. 90; and R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 125.
25 Determining the probative value of fresh evidence on appeal may be a difficult task, since the evidence has not been put to the test of cross‑examination or rebuttal at trial. Some courts of appeal express reluctance when they are asked to admit fresh evidence containing information which the adverse party has not been able to verify. In Riley, supra, at p. 284, Pugsley J.A. wrote, for the majority of the Nova Scotia Court of Appeal:
The panel was concerned, however, about the manner in which critical information was presented to the court by defence counsel and the lack of opportunity afforded to the Crown to assess, let alone contest the information.
See also Archibald, supra. In my view, where fresh evidence is challenged, or where its probative value is in dispute, it is desirable that it be tested before being admitted, primarily for two reasons: (1) this facilitates the determination of the probative value of the fresh evidence, and (2) this is fairer to the party objecting to the admission of the fresh evidence. This “testing” can be done in a number of ways. In Riley, for example, the Nova Scotia Court of Appeal gave the Crown the opportunity to file affidavits in response to those submitted by the accused. Courts of appeal may also, for example, allow cross‑examination of a witness or submission of expert evidence in response to fresh expert evidence. In other words, they can do everything that the powers conferred on them by s. 683 of the Criminal Code permit them to do. Courts of appeal may exercise the powers set out in s. 683 of the Criminal Code , in both an appeal from a sentence and an appeal from a verdict: for an example of the application of s. 683 in an appeal from a sentence, see R. v. Berry (1997), 196 A.R. 398 (C.A.), at pp. 400‑401.
26 A party who wishes to tender evidence in response to fresh evidence, cross‑examine the deponent of an affidavit or an expert, or challenge the fresh evidence in any other way should make a formal motion to the court of appeal for that purpose. It is not sufficient, as occurred in this case, to say during argument on the merit of the motion to introduce fresh evidence, that a party would have liked to cross‑examine the authors of the reports. In my view, the appellant cannot rely on the fact that there was no cross‑examination to argue that the fresh evidence should not have been admitted, since it was up to the appellant to seek leave from the court of appeal, at the appropriate time, to cross‑examine the authors of the reports in dispute.
27 Nonetheless, the failure to put the fresh evidence to the test is not fatal and does not make it automatically admissible or inadmissible. To be admissible on appeal, fresh evidence must satisfy the criteria set out in Palmer. Despite its not having been tested, the court of appeal must assess the prima facie relevance, credibility and probative value of the fresh evidence. It must determine whether the fresh evidence has such probative force that if presented to the trial judge and believed it could be expected to have affected the result. In the case of an expert opinion, the probative value to be assigned to it is directly related to the amount and quality of admissible evidence on which it relies: R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 897.
28 To summarize, the probative value of fresh evidence must be considered in order to determine whether it is admissible on appeal. To facilitate determination of the probative value of fresh evidence, it is desirable that it be tested by the party challenging it. For this purpose, that party should make a formal motion to the court of appeal and explain how it wishes to test the fresh evidence. Failure by a party to test fresh evidence does not relieve a court of appeal from applying the criteria established in Palmer.
29 The application of those criteria in the context of an appeal from a sentence will inevitably be influenced by the specific characteristics of the sentencing process, even though the criteria for the admission of fresh evidence remain fundamentally the same. I will now briefly consider some of these specific characteristics and their interaction with the Palmer criteria.
D. Application of the Criteria in the Context of an Appeal Against Sentence
30 As pointed out by Macdonald J.A. in Langille, supra, the strict rules of a trial do not apply to a sentencing hearing. For example, hearsay evidence may be accepted at the sentencing stage where found to be credible and trustworthy: see R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414. This relaxation of the rules is explained by the fact that the judge must determine the appropriate