What is the test for re-opening a trial to adduce fresh evidence after judgement has been pronounced?

British Columbia, Canada


The following excerpt is from British Columbia (Public Safety and Solicitor General) v. Stelmack, 2011 BCSC 1244 (CanLII):

In Zhu v. Li, [2007 BCSC 1467], Ehrcke J. described the test for re-opening a trial to adduce fresh evidence after judgement has been pronounced but before the formal order is entered, as follows: 1. Prior to entry of the formal order, a trial judge has a wide discretion to re‑open the trial to hear new evidence. 2. This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and an abuse of the court’s process. 3. The onus is on the applicant to show first that a miscarriage of justice would probably change the result. 4. The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result. 5. Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.

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