Simon's Megalomaniacal Legal Resources

Criminal - Appeal - Failure to Object

. 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.