R. v. Hardyal
Because the confidential informant's tip, admitted only to show officers' state of mind, was treated and used by Crown and the trial judge as substantive proof without a limiting instruction, the jury was likely permitted to use the hearsay for its truth and this undermined the fairness of the trial; the conviction...
Source-derived case information.
- Citation
- C39192
- Parties
- Respondent: Her Majesty the Queen; Appellant: Shaneeza Hardyal
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 31 March 2004
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence — Court of Appeal Decision
- Outcome
- Appeal allowed; conviction set aside; new trial ordered.
- Legal Topics
- Hearsay, Limiting Instruction, Confidential Informant, Proviso S.686(1)(b)(iii) of the Criminal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Shaneeza Hardyal
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence — Court of Appeal Decision
Legal Issues
- 1 Admissibility and proper use of a confidential informant's tip
- 2 Whether a limiting instruction was required when evidence is admissible for a limited purpose
- 3 Whether s.686(1)(b)(iii) proviso applies despite absence of limiting instruction and lack of defence objection
Ratio Decidendi
Because the confidential informant's tip, admitted only to show officers' state of mind, was treated and used by Crown and the trial judge as substantive proof without a limiting instruction, the jury was likely permitted to use the hearsay for its truth and this undermined the fairness of the trial; the conviction was therefore set aside and a new trial ordered.
Court Disposition
Appeal allowed; conviction set aside; new trial ordered.
Orders
- Conviction set aside
- New trial ordered
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Hardyal Collection Decisions of the Court of Appeal Date 2004-03-31 Docket numbers C39192 Judges Laskin, John Ivan; Rosenberg, Marc; Benotto, Mary Lou Subject Criminal Decision Content DATE: 20040331 DOCKET: C39192 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) - and - SHANEEZA HARDYAL (Appellant) BEFORE: LASKIN, ROSENBERG JJ.A. and BENOTTO J. (ad hoc) COUNSEL: P. Andras Schreck For the appellant Nick Devlin For the respondent HEARD: March 18, 2004 RELEASED ORALLY: March 18, 2004 On appeal from conviction by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury, on May 9, 2002 and sentence imposed on July 31, 2002. ENDORSEMENT [1] This appeal must be allowed. Evidence of a highly prejudicial nature in the form of a tip from a confidential informant was placed before the jury. While that evidence was admissible to show the state of mind of the officers, given the nature of the defence, it was not admissible for its truth. The trial judge was required to give the jury a limiting instruction on the use to be made of that evidence. [2] Notwithstanding the lack of objection by defence counsel, this is not a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. Crown counsel cross-examined the appellant on this evidence and referred to it in her closing address for the purpose of having the jury use the information for its truth. As well, in the charge to the jury, the trial judge referred to this evidence as part of the evidence relied upon by the Crown. [3] Without a limiting instruction about the hearsay use of the evidence, the jury would believe that they were entitled to use the contents of the informer's tip for its truth to support the evidence of the police officers. The limiting instruction on the use of the appellant's criminal record was not sufficient to remove the possibility that the jury would misuse this evidence for its truth. [4] Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered. Signed: "M. Rosenberg J.A." "John Laskin J.A." "M.L. Benotto J. (ad hoc)"