The Court must exclude inadmissible evidence, even if called by the party injured by the evidence, if justice requires

R. v. Igbinedion, 2011 ONCA 571 is a remarkable case. The accused who was self-represented called evidence that was presumptively inadmissible and was highly prejudicial. The Court held the trial judge ought to have made it clear that the evidence adduced was of highly limited use and ordered a new trial. This is a good example of where the Court uses its jurisdiction to ensure a fair trial even where no objection was made to evidence being adduced:

[3]              The appellant's defence also should have been relatively straight-forward.  His position was that a business associate had given him the cheque to repay a debt and he believed the cheque was genuine.  Regrettably, the appellant, who was not represented by counsel, decided to make the manner in which the case was investigated an issue in the case.  Accordingly, he called the officer in charge of the investigation, Detective Redick, as his own witness.  He then proceeded to ask him a series of very ill-advised questions as to why the officer arrested him and why he did not conduct certain other investigations.  The result was that prejudicial opinion and investigative hearsay was placed before the jury.  Further, the trial judge failed to give the jury a limiting instruction as to the use to be made of that evidence and in fact invited the jury to use Detective Redick's opinion and other evidence to support the Crown's allegation that the appellant must have known that the cheque was forged.

[4]              Thus, the trial judge instructed the jury, in part, as follows:

The cheque cleared the five-day hold period, and then, as you will see from the account printout, a series of withdrawals started. Detective Redick told you that the withdrawal pattern in Mr. Igbinedion's business account is typical of what occurs when a counterfeit cheque is deposited and a person wants to get the money. That person usually tests the water to see if they will get away with the fraud. They start with small withdrawals, and if there are no problems, the withdrawals will escalate. That is the type of activity that you will see when you look at the account printout.

And

The detective told you that he had investigated the names on the money orders, and his search told him that Wale Phillips was a person involved in another fraud and in possession of property obtained by crime.

[5]              Detective Redick's evidence was admissible for a very limited purpose.  As the Supreme Court of Canada said in R. v. Van, [2009] 1 S.C.R. 716 at para. 26:

 Lower courts have also decided that a trial judge who admits evidence of this kind must provide the jury with a limiting instruction as to its permissible and impermissible uses. The jury must be informed that they can only use evidence of this type for the limited purpose of setting out a narrative of the procedures that were followed in the investigation. They must be cautioned against relying on hearsay and opinion evidence that would be otherwise inadmissible in their determination of the guilt or innocence of the accused (Dhillon, at para. 51; Mallory, at para. 92).

[6]              There was no suggestion that Detective Redick's evidence was admissible as expert opinion evidence.  His evidence about Wale Phillips was hearsay, highly prejudicial and not admissible for its truth as an item of evidence from which the jury could find that the appellant knew the cheque was forged.  The jury should have been directed in the clearest of terms that they could not use Detective Redick's testimony about his investigation as evidence of guilt.