It is fundamental that to be receivable in a criminal trial, evidence must be relevant, material and admissible. When one party contends that evidence proffered by another party is irrelevant, immaterial or inadmissible, that party should object to the proffer on specific grounds.
When objection is taken to the relevance, materiality or admissibility of an item of evidence, the task of the trial judge is to determine the validity of the objection and, in turn, the receivability of the evidence.
A judge presiding over a criminal jury trial has a duty to ensure that only relevant, material and admissible evidence gets before the jury.
A jury charge (the judge’s instructions to the jury concerning the law that applies to the facts of the case on trial) must be viewed contextually to determine whether or not it achieves the function for which it is intended. This standard was set out in R. v. Simon, 2010 ONCA 754 (CanLII).
Within the jury charge, the judge may be required to provide corrective or limiting instructions to the triers of fact (the jury). Whereas a corrective instruction relates to evidence that is inadmissible, a limiting instruction applies to evidence that is admissible for one purpose, but not for another.
Limiting instruction Where evidence of limited admissibility is received, the presiding judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence:
B. (F.F.), at pp. 733-734; R. v. Starr, 2 S.C.R. 144, at para. 184; R. v. Largie, 2010 ONCA 548 (CanLII), 101 O.R. (3d) 561, at paras. 106-197.
The absence of a limiting instruction, standing alone, does not necessarily create reversible error: R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 59. For instance, an important but not dispositive factor in determining whether appellate intervention is warranted is the failure of counsel to object to the absence of a limiting instruction within the jury charge.
Corrective instruction Where inadmissible evidence seeps into a criminal jury trial, the trial judge should instruct the jury in such a way to ensure that the evidence is not misused in the jury’s decision-making:
R. v. A. (J.) (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 537.