R v Fries, 2017 MBCA 58
[12] Because the defence of inadequate investigation was prominent in this case, a few comments on it are necessary. The decision of the defence to attack the inadequacy and integrity of a police investigation in support of the theory that someone other than the accused committed a crime is an entirely appropriate strategy, but it is a “risky” one (R v Mallory, 2007 ONCA 46 at para 87). If advanced, the claim of an inadequate police investigation potentially opens the door to the Crown being able to lead otherwise inadmissible evidence, such as investigation hearsay, opinion and bad character evidence regarding the accused, to rebut the allegation so that the jury does not have a distorted and incomplete picture. See R v Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262 at para 46 (Ont CA); R v Lane, 2008 ONCA 841 at para 41; R v Jackson, 2013 ONCA 445 at para 77; and Spackman at para 123. When such a defence is advanced, the trial judge must take great care after holding a voir dire to ensure that the otherwise inadmissible evidence that the Crown wishes to rely on is relevant and probative of the adequacy and integrity of the police investigation and that its prejudicial effect does not outweigh its probative value. A limiting instruction on the jury’s use of any evidence admitted to explain what the police did and why they did it is required, except where the instruction would prejudice a “calculated defence strategy” (R v Singh, 2010 ONCA 808 at para 54; see also R v Van, 2009 SCC 22 at paras 26, 33).
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