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**DATE:** 2004-03-31
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**DOCKET:** C39192
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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
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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.
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## E N D O R S E M E N T
[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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). 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:
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“M. Rosenberg J.A.”
“John Laskin J.A.”
“M.L. Benotto J. (ad hoc)”
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minicounsel