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Yes, you can sometimes bring new evidence to a criminal appeal, but only with the court’s permission. The Court of Appeal admits “fresh evidence” when it is in the interests of justice, applying the four-part test from Palmer v The Queen: due diligence, relevance, credibility, and whether the evidence could reasonably have affected the result. When it is admitted on a conviction appeal, the usual result is a new trial. For how appeals work generally, see our criminal appeals overview.
A criminal appeal lawyer is often required to prepare an appeal by relying solely on the evidence presented during the trial. In some cases, the appeal lawyer can present new evidence to the appeal court. This can assist in getting the court to overturn a conviction or reduce a sentence imposed at the trial level.
When new evidence is led on an appeal it is called “fresh evidence.” Courts of appeal have very broad discretion to receive fresh evidence though the Appeal courts have set a very high threshold to receive this type of evidence. Fresh evidence is not intended to be used as another attempt to litigate the facts heard at trial.
- The power
- Criminal Code s. 683(1)The Court of Appeal may receive evidence where it is in the interests of justice
- The test
- Palmer (1980)Four criteria set by the Supreme Court of Canada
- How it is raised
- A motion for leaveUsually heard with the appeal itself
- If it is admitted
- Usually a new trialRarely an acquittal; on a sentence appeal, a varied sentence
What is the test for admitting fresh evidence on a criminal appeal?
Four criteria, one question: would it be in the interests of justice to hear it?
In all cases, the key question the Court must answer is whether it is in the interests of justice to admit the fresh evidence. This involves an evaluation of all the circumstances of the case. In Criminal Code terms, s. 683(1) lets the Court of Appeal, where it considers it in the interests of justice, order documents and exhibits produced, order witnesses examined, and receive evidence; the parties may examine and cross-examine those witnesses (s. 683(2)).
In determining whether an appeal court will receive fresh evidence, the court is required to balance four factors, set out by the Supreme Court of Canada in Palmer v The Queen, [1980] 1 SCR 759:
- The evidence should generally not be admitted if, by due diligence, it could have been led at trial. Note: this general principle will not be applied as strictly in a criminal case as in civil cases.
- The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
- The evidence must be credible in the sense that it is reasonably capable of belief.
- 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 factors are not weighed equally. Due diligence is only one factor: in R v Warsing, [1998] 3 SCR 579, the Supreme Court held that if the evidence is compelling and the interests of justice require it, a failure to call it at trial should yield. The Court of Appeal for Ontario, in Truscott (Re), 2007 ONCA 575, groups the test into three questions: is the evidence admissible under the ordinary rules of evidence, is it cogent enough that it could reasonably have affected the verdict, and what explains why it was not called at trial. Evidence that fails the first two cannot be admitted; the explanation matters only once they are met.
Why the bar is high. In Palmer the Supreme Court said it would not serve the interests of justice to let a witness reopen a trial at will simply by repudiating or changing their trial evidence. Finality matters too: routinely admitting evidence that could have been called at trial would undermine the trial process itself (Truscott, para. 101).
How can fresh evidence impact a trial verdict?
Fresh evidence can impact the reliability of a verdict in different ways – for instance, it could create doubt on a theory advanced by the Crown, undermine an essential element that the Crown has to prove or impeach the credibility of a crucial Crown witness or the reliability of his or her testimony.
For the appeals our lawyers have won, see our criminal appeals page.
Some examples from the reported cases show the range of what can qualify:
Expert evidence the jury never heard
In R v Manasseri, 2016 ONCA 703, new expert opinion about what caused the victim’s death was admitted on appeal. The Court of Appeal set aside the second-degree murder conviction and ordered a new trial.
Science that has moved on
In Truscott (Re), 2007 ONCA 575, fresh expert evidence about the time of death undermined the Crown’s case decades after the conviction. The court quashed the conviction and entered an acquittal.
A defence that was never raised
In R v Warsing, [1998] 3 SCR 579, psychiatric evidence allowed a not-criminally-responsible defence to be raised for the first time on appeal, although it failed the due diligence criterion. A new trial was ordered.
A witness who takes it back
A recantation is not enough on its own. In Palmer, statements by the principal Crown witness that his trial evidence was untrue were not admitted, and the convictions stood. Credibility is tested before the evidence is received.
How is fresh evidence put before the Court of Appeal?
Fresh evidence is never simply attached to a factum. It needs the court’s leave, on a motion, even when the Crown agrees it should be heard (R v Lévesque, 2000 SCC 47).
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Identify the evidence and the ground of appeal
Fresh evidence has to connect to a ground of appeal: an unreasonable verdict, an error of law, or a miscarriage of justice (Criminal Code s. 686(1)(a)). Where the fresh evidence raises a claim that trial counsel was ineffective, the Court of Appeal’s practice direction sets a special procedure.
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Serve and file a notice of motion
Under rule 27 of the Court of Appeal for Ontario’s Criminal Appeal Rules, the motion is served and filed as soon as possible. It describes the evidence, the ground it relates to, where it comes from, why it is admissible, and whether the Crown consents. If the notice of appeal did not ask for leave, a supplementary notice of appeal is filed too.
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Build the record
An appeal management judge sets the form the evidence takes (often affidavits), the timetable and any cross-examinations; the Crown is entitled to cross-examine (Criminal Code s. 683(2)). The completed record is filed sealed.
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The court hears the motion with the appeal
The motion is normally heard at the appeal itself. The court considers the fresh evidence against the whole trial record, then decides both the motion and the appeal (R v Stolar, [1988] 1 SCR 480).
What happens when fresh evidence is accepted on appeal?
If the appeal court accepts that the fresh evidence should have been before the trial court, it does not decide the case afresh on its own. It has three options (R v Stolar): refuse the evidence and decide the appeal; admit it as conclusive and dispose of the case; or admit evidence that could change the outcome and send the case back for a new trial.
A new trial
The usual result. Where the fresh evidence could reasonably have changed the verdict, the conviction is quashed and a new trial ordered so a judge or jury can weigh it (Criminal Code s. 686(2)(b); Stolar).
An acquittal
Rare. Where the evidence is conclusive, the court can enter an acquittal instead (s. 686(2)(a)). In Truscott, no new trial could ever be held and an acquittal was clearly the more likely result, so one was entered.
A different sentence
On a sentence appeal, fresh evidence cannot lead to a new trial. The court decides whether the sentence is fit and may vary it (s. 687(1)).
Because a successful application can end in a new trial or even an acquittal, the Crown will often fight very hard to avoid having the court consider fresh evidence on appeal.
Calling fresh evidence on a sentence appeal
The test is the same on a sentence appeal as on a conviction appeal: the Palmer criteria, including due diligence, apply to both (R v Lévesque, 2000 SCC 47). In practice, though, both the Crown and the court are often more receptive to fresh evidence on a sentence appeal. The Crown may consent, and the court may take that consent into account.
In the sentencing context, fresh evidence can present the appeal court with information that was not before the judge at the time of the trial. This is particularly so when the client is released on bail pending appeal for a period of time waiting for his appeal to be heard. Fresh evidence led on a sentence appeal can cause the appeal court to reduce the length of a sentence or eliminate the jail sentence altogether. It can also be used to modify the sentencing order in a variety of other ways.
It still has to matter. In Lévesque, the Supreme Court held that two expert reports should not have been admitted simply because they shed more light on the trial evidence: they rested on a version of the facts never established at trial.
Fresh evidence is a valuable tool to advance a client’s case before the courts of appeal. To learn more about the appeal process read: Criminal Law Appeals. If it is the Crown that has appealed, see defending a Crown appeal.
What if new evidence surfaces after every appeal is over?
Once the rights of appeal are exhausted, a person convicted of a federal offence can apply to the federal Minister of Justice for a review on the ground of a miscarriage of justice (Criminal Code s. 696.1). If satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred, the Minister may order a new trial or refer the case to the Court of Appeal to be heard as if it were an appeal (s. 696.3(3)). Steven Truscott’s acquittal came through that route.
Parliament has passed the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), S.C. 2024, c. 33, which moves these reviews to an independent commission. The Commission has been established, but as of September 2026 the new review scheme is not yet in force, so applications still go to the Minister.
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. Appeals, including fresh evidence applications, are a core part of what our lawyers do.
A nationally recognized defence firm
An award-winning reputation in criminal defence and appellate advocacy: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
An appellate practice with a record
Our lawyers argue conviction and sentence appeals at the Court of Appeal for Ontario and the Supreme Court of Canada. See the acquittals and new trials they have won on our criminal appeals page.
A strategy for the new evidence
Our appellate lawyers can determine if your appeal is one that could be assisted by fresh evidence, and how to prepare a strategy to present this new evidence to the court to maximize your chance of success.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
Fresh Evidence on Appeal — Frequently Asked Questions
Short answers to the questions people ask about new evidence on a criminal appeal.
The test
Can you introduce new evidence in a criminal appeal?
Sometimes. An appeal is normally decided on the trial record, but the Court of Appeal can receive new evidence, called fresh evidence, where it is in the interests of justice (Criminal Code s. 683(1)). It needs the court’s leave on a motion, and the evidence must meet the Palmer test.
What is the Palmer test?
The four criteria from Palmer v The Queen, [1980] 1 SCR 759: the evidence generally should not be admitted if it could have been led at trial with due diligence (applied less strictly in criminal cases); it must be relevant to a decisive or potentially decisive issue; it must be reasonably capable of belief; and, if believed, it must be capable of having affected the result.
Does the evidence have to be something that was unavailable at trial?
Not always. Due diligence is only one factor. If the evidence is compelling and the interests of justice require it, the court may admit it even though it could have been called at trial (R v Warsing, [1998] 3 SCR 579). An explanation for why it was not called still matters.
Is a witness taking back their testimony enough?
Not by itself. In Palmer, the principal Crown witness’s statements that his trial evidence was untrue were not admitted. The court must be satisfied the new account is reasonably capable of belief and could have affected the result.
The process and the outcome
How is a fresh evidence application made in Ontario?
By a notice of motion for leave to introduce fresh evidence under rule 27 of the Court of Appeal for Ontario’s Criminal Appeal Rules, usually supported by affidavits. An appeal management judge sets the timetable and any cross-examinations, and the motion is normally heard with the appeal.
Can the Crown cross-examine on the fresh evidence?
Yes. The parties are entitled to examine or cross-examine witnesses in proceedings under s. 683 of the Criminal Code (s. 683(2)).
What happens if the court admits the fresh evidence?
Usually the conviction is set aside and a new trial ordered. Where the evidence is conclusive, the court can enter an acquittal instead. If the evidence does not meet the test, the motion is dismissed and the appeal is decided on the trial record (R v Stolar, [1988] 1 SCR 480).
Can fresh evidence be used on a sentence appeal?
Yes, under the same Palmer criteria (R v Lévesque, 2000 SCC 47). Information about what has happened since sentencing can support a reduced sentence or a different sentencing order.
What if new evidence appears after my appeals are finished?
You can apply to the federal Minister of Justice for a miscarriage of justice review (Criminal Code s. 696.1). A new independent Miscarriage of Justice Review Commission has been created by statute, but as of September 2026 its review scheme is not yet in force.
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Could fresh evidence help your appeal? Talk to Daniel Brown Law
Appeal deadlines are short, and fresh evidence takes time to gather. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3