The analysis focussed on when it is appropriate for the Court to exercise its discretion to permit new evidence at an Appeal. Wilson J. concluded that the test for admissibility of new evidence in Rule 6.14(3) is in essence the same as that in R. v Palmer (1979), 50 CCC (2d) (S.C.C.) – the test which governs the admissibility of new evidence before the Court of Appeal under Rule 516.2. That test is:

(a)        The evidence should generally not be admitted if, by due diligence, it could have been adduced at Trial;

(b)        The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the Trial;

(c)        The evidence must be credible in the sense that it is reasonably capable of belief; and

(d)        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.

Wilson J. stressed that the word “new” in 6.14(3) was a clear signal that the proffered materials must truly be “new evidence”, in the sense that they could not by due diligence have been adduced at the Chambers Application; in other words, they must be “recently discovered” or “recently made available”.