Error and effect of submissions of counsel

R. v. Kostyk, 2014 ONCA 447:

[42]       In R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused, [2010] S.C.C.A. No. 263, Doherty J.A. re-affirmed that counsel’s position at trial is not determinative when a 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”.  Nonetheless, demonstrating a legal error is not the end of the inquiry in terms of setting aside a conviction on appeal where defence counsel has taken a contrary position at trial.  Trial counsel’s position is relevant in considering the curative proviso: R. v. Austin (2006), 214 C.C.C. (3d) 38, at para. 15 (Ont. C.A.); and R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1308-1309.  As Doherty J.A. correctly pointed out in Austin, at para. 14, “[a]rguments by appellate counsel that fly in the face of positions taken by counsel at trial quite properly attract judicial scepticism and resistance”.  This is all the more the case where it appears that trial counsel’s position reflects a calculated tactical decision: R. v. Lomage (1991), 2 O.R. (3d) 621, per Finlayson J.A., at pp. 629-30 (C.A.).