Court of Appeal for Ontario
Before: Rosenberg, Gillese and LaForme JJ.A.
Between:
Her Majesty The Queen
Respondent
and
Cory Farrell
Appellant
Counsel:
Cory Farrell, in person
Emily Morton, amicus curiae Deborah Krick, for the respondent
Heard: August 15, 2011
On appeal from conviction entered by Justice Joseph Fragomeni of the Superior Court of Justice, sitting with a jury, dated January 26, 2010.
ENDORSEMENT
1The appellant, with the assistance of duty counsel, appeals from his conviction for aggravated assault by a court composed of Fragomeni J. and a jury. For the following reasons, the appeal is allowed and a new trial ordered.
2The appellant’s defence at trial was self-defence and defence of others. Prior to testifying he brought a Corbett application (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670) to have some of the convictions on his criminal record excised. The particular convictions were a 1993 conviction for assault and a 1996 conviction of assault with a weapon. The defence conceded that a conviction in 1999 for assault should be before the jury. There was also no dispute that the appellant could be cross-examined on other parts of his criminal record, which included crimes of dishonesty such as theft and possession of stolen goods.
3One of the pivotal issues in the case was whether the victim, Mr. Philips, was the aggressor as claimed by the appellant. The trial judge concluded that the entire record should be before the jury and, in addition, he allowed Crown counsel to cross-examine the appellant on the facts underlying the three assault convictions. He did so on the basis that otherwise there was a risk that the jury will be presented with a misleading picture and a skewed view of the facts. Consistent with this ruling, the trial judge then instructed the jury that they could use the assault convictions to determine who, as between the appellant and the victim, was the aggressor:
It is very important that you understand that you must not use the fact, number or nature of the prior convictions to decide or help you decide that Cory Farrell is the sort of person who would commit the offences charged. The evidence relating to Cory Farrell’s criminal record is relevant to your assessment of the credibility of Cory Farrell. It is also relevant in your assessment of who was the aggressor in this matter and how that determination relates to the defence being put forward in this matter, namely self defence. [Emphasis added.]
4In our view, the trial judge erred with respect to his ruling on the Corbett application and in his charge to the jury. As to the Corbett application, while there was some attack on Mr. Philips’ credibility, because of his bad character, that aspect of the cross-examination was relatively insignificant. The overwhelming amount of cross-examination was directed to the particular incident and the victim’s relationship with the women involved in the incident. There was no cross-examination of the victim on any criminal record. This case falls within this court’s decision in R. v. B. (W.), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 at paras. 45 – 49. The attack on the victim’s evidence may incidentally have impacted on his character but the cross-examination was primarily directed to the truthfulness of his account of the incident.
5The error in allowing cross-examination on the entire criminal record was compounded by the trial judge leaving it to the jury to use the appellant’s criminal record not only for credibility but to decide whether it was the appellant or the victim who was the aggressor. Where the Crown is permitted to cross-examine an accused under s. 12 of the Canada Evidence Act, the record goes only to the accused’s credibility. The jury is to be cautioned as to the limited use of the evidence. As Dickson C.J. said in Corbett at p. 691.
In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value. [Emphasis added.]
6The appellant’s prior convictions and the facts underlying those convictions could only be admitted for a purpose other than to test his credibility if the trial judge found that the evidence met the test for similar fact evidence as enunciated by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Before the evidence could be admitted the trial judge would have had to determine whether the probative value of the evidence outweighed the serious prejudicial effect and in particular would have to consider the factors summarized at para. 82 of Handy. That was not done in this case, and given the remoteness of the convictions and the different context in which they arose we have grave doubts that the evidence could have been admitted as similar fact evidence.
7As we have said, whether the appellant or the victim was the aggressor was an important issue in the case. The evidence of the prior convictions and the facts underlying those convictions was highly prejudicial. We cannot be satisfied that if the evidence had been excluded and the jury properly directed as to the limited use of the appellant’s record that the verdict would necessarily have been the same.
8Accordingly, the appeal is allowed, the conviction quashed and a new trial ordered. We wish to thank both counsel for their submissions in this case and especially Ms. Morton who acted as duty counsel and made submissions on the appellant’s behalf.
Signed: "M. Rosenberg J.A."
"E.E. Gillese J.A."
"H. S. LaForme J.A."
