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Criminal - Appeal - Failure to Object. R. v. D.B.
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers the failure to object at trial to evidence earlier admitted:[35] In fairness to the trial judge, defence counsel did not raise any concerns about this evidence at any point during the trial. That can be a consideration in the assessment of the prejudicial impact of the evidence. However, a “legal error remains a legal error irrespective of trial counsel’s position”: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70. Upon reviewing the record, I have no reason to believe that defence counsel’s failure to object was a tactical decision: Calnen, at paras. 40-41. Therefore, the failure of defence counsel to object to the jury charge is not determinative: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 67-69.
[36] Accordingly, notwithstanding the failure of defence counsel to object, the circumstances of this case were such that the trial judge should have instructed the jury that the reaction evidence had no probative value and his failure to do so is an error of law: Abdullahi, at para 49.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. Osborne
In R. v. Osborne (Ont CA, 2024) the Ontario Court of Appeal considered a 'failure to object' by defence counsel in a criminal appeal:[52] Finally, although trial counsel’s failure to object is never determinative, it can, depending on the circumstances, be a strong indication that counsel did not perceive there to be any unfairness: R. v. Boone, 2016 ONCA 227, 28 C.R. (7th) 1, at para. 53, leave to appeal refused, [2016] S.C.C.A. No. 238 (S.C.C.); R. v. Moore, 2017 ONCA 947, 357 C.C.C. (3d) 500, at para. 21. Here, counsel did not object to this aspect of the Crown’s argument, despite there being no mystery about what the Crown’s theory would be. In those circumstances, the lack of objection could not possibly have been through inadvertence and reflects trial counsel’s reasonable assessment that nothing unfair was transpiring. . R. v. Papasotiriou
In R. v. Papasotiriou (Ont CA, 2023) the Court of Appeal considers the effect of failure to object on an appellant's position:[125] The failure to object is, however, a consideration on appeal. Its importance will vary with the nature of the objection advanced for the first time on appeal. If the objection is a purely legal one, for example, a claim that the judge misstated the elements of the offence, the failure to object may have little significance. If, however, the objection raised for the first time on appeal is based on the manner in which the trial judge presented the defence, or related the evidence to their position, counsel’s failure to object at trial can become very important in assessing the adequacy of the instruction. No one knows better than counsel what is and is not important to the defence position, and whether that position has been properly put to the jury. Counsel’s failure to object, especially to the manner in which the defence is put to the jury, is particularly important when counsel, as in this case, had the opportunity to review the proposed instruction before it was given: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 52; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 36-40, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283; and R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 88-89, leave to appeal refused, [2010] S.C.C.A. No. 263.
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