Monday, December 24, 2012

Limiting instruction to jury necessary even where no objection to evidence made

R. v. Chamot, 2012 ONCA 903 deals with a case where no objection was made to bad character evidence in a criminal jury trial. The Court held the failure to object did not mean the trial judge was correct in not giving a limiting direction:

[73]       First, counsel's failure to object can be a very important consideration when assessing the effect of a non-direction: see e.g., R. v. J.S., 2010 ONCA 606, at para. 7.  For example, in cases where the potential misuse of the evidence is debatable, counsel's failure to object at trial may well influence the appellate court.  However, in this case, the quantity and quality of the bad character evidence suggests a very significant risk that the jury could misuse that evidence absent a proper limiting instruction.  Certainly, there could be no tactical reason for counsel's failure to object.   The absence of an objection in these circumstances does not cause me to conclude that the non-direction was not significant. 

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