Today's decision in R. v. Polimac, 2010 ONCA 346 is a good source for the proposition that counsel's position at trial on evidence is persuasive but not dispositive for an appeal:
[97] Counsel's position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal error remains a legal error even if counsel does not object or even supports the erroneous instruction: see R. v. Wright (2009), 98 O.R. (3d) 665 (C.A.) at para. 27; R. v. Van, [2009] 1 S.C.R. 716 at para. 43. Jury instructions, particularly about the manner in which juries may consider parts of the evidence, are not, however, designed to formulate legal principles for the jury or offer abstract verbalizations of those principles. Jury instructions about the evidence must ensure the following: first, that the jury understands how the evidence can and cannot be used in the context of the particular case; and second, that the jury understands the positions taken by the defence and Crown with respect to that evidence. Counsel's considered position after examining the proposed instruction sheds valuable light on whether that proposed instruction met those two goals.
James Morton
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