Her Majesty the Queen v. M.C.

[Indexed as: R. v. C. (M.)]

Ontario Reports Court of Appeal for Ontario Watt, Benotto and L.B. Roberts JJ.A. June 18, 2019

146 O.R. (3d) 493 | 2019 ONCA 502

Case Summary

Criminal law — Evidence — Criminal record — Accused convicted of sexual offences against his nephew — Accused testifying as to his prior convictions for drinking and driving offences during examination in chief and cross-examination — Neither counsel asking accused about number and details of offences or when they were committed — Trial judge erring in taking prior convictions into account in assessing accused's credibility.

The accused was charged with sexual offences against his nephews A and N. He testified and denied that the alleged incidents ever occurred. During his examination in chief, he acknowledged a drinking problem when he was younger and said that he had gone to jail as a result of drunk driving charges. In cross-examination, he admitted that he had been convicted for "driving a car when you weren't supposed to". Neither counsel asked the accused about the dates or specifics of the prior offences. The trial judge convicted the accused of the offences against N. He took into account the accused's prior driving offences in assessing his credibility. In particular, he found that the accused's prior convictions for driving while prohibited were crimes of dishonesty that showed a callous disregard for the rules. The accused appealed.

Held, the appeal should be allowed.

The manner in which counsel at trial adduced evidence about the accused's past "troubles" deprived the trial judge of the information necessary to make an informed assessment of the impact, if any, of the prior convictions on the accused's credibility as a witness. There was no description of the offences, no dates of conviction and no indication of the punishment imposed. Further, the reference to the accused's history of dishonesty seemed speculative and sat uncomfortably close to the use of propensity reasoning. Reasonable people may differ about whether the Criminal Code offence of driving while disqualified is an offence of dishonesty or is more properly characterized as an offence against the administration of justice. However characterized, without any details about the number and proximity of the convictions, nothing informed could be said about their impact on testimonial trustworthiness. The trial judge therefore erred in relying on evidence of the accused's prior convictions in rejecting his testimony.

Authorities Considered

R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40

R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 23 C.R. (5th) 197, 133 C.C.C. (3d) 385

R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13

Other Cases Referred to

R. v. A.B., [2016] A.J. No. 1374, 2016 ABQB 733

R. v. Anderson, [2014] 2 S.C.R. 167, [2014] S.C.J. No. 41, 2014 SCC 41

R. v. Brown, [1977] O.J. No. 1220, 38 C.C.C. (2d) 339, 2 W.C.B. 104 (C.A.)

R. v. Brown, [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82

R. v. Gayle (2001), 54 O.R. (3d) 36, [2001] O.J. No. 1559, 201 D.L.R. (4th) 540, 145 O.A.C. 115, 154 C.C.C. (3d) 221, 83 C.R.R. (2d) 268, 50 W.C.B. (2d) 14 (C.A.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 359]

R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28

R. v. Laurier, [1983] O.J. No. 195, 1 O.A.C. 128, 11 W.C.B. 165 (C.A.)

R. v. Maciel, [2007] O.J. No. 1034, 2007 ONCA 196, 222 O.A.C. 174, 219 C.C.C. (3d) 516, 47 C.R. (6th) 319, 73 W.C.B. (2d) 235 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 258]

R. v. McManus, [2017] O.J. No. 1372, 2017 ONCA 188, 36 C.R. (7th) 261, 138 W.C.B. (2d) 229, 353 C.C.C. (3d) 493

R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, 133 W.C.B. (2d) 203, 344 C.C.C. (3d) 281 [Leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513]

R. v. Reeve, [2008] O.J. No. 1680, 2008 ONCA 340, 236 O.A.C. 92, 78 W.C.B. (2d) 129, 57 C.R. (6th) 163, 233 C.C.C. (3d) 104

R. v. Reid (2016), 132 O.R. (3d) 26, [2016] O.J. No. 3554, 2016 ONCA 524, 338 C.C.C. (3d) 47, 357 C.R.R. (2d) 243, 131 W.C.B. (2d) 512, 351 O.A.C. 154 [Leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 432]

R. v. Stratton (1978), 21 O.R. (2d) 258, [1978] O.J. No. 3536, 90 D.L.R. (3d) 420, 42 C.C.C. (2d) 449, 3 C.R. (3d) 289, 2 W.C.B. 445 (C.A.)

R. v. Thompson, [2000] O.J. No. 2270, 133 O.A.C. 126, 146 C.C.C. (3d) 128, 46 W.C.B. (2d) 459 (C.A.)

R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575, 226 O.A.C. 200, 225 C.C.C. (3d) 321, 50 C.R. (6th) 1, 75 W.C.B. (2d) 479

R. v. Underwood, [1998] 1 S.C.R. 77, [1997] S.C.J. No. 107

R. v. Warsing, [1998] 3 S.C.R. 579, [1998] S.C.J. No. 91

Statutes Referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 12(1)

Criminal Code, R.S.C. 1985, c. C-46, s. 683(1), Part XXIII, s. 718.2(e)

Procedural History

APPEAL by the accused from the conviction entered Conlan J., [2017] O.J. No. 483, 2017 ONSC 776 (S.C.J.) and from the sentence imposed, [2017] O.J. No. 2274, 2017 ONSC 2667 (S.C.J.).

Counsel:

Louis P. Strezos, Promise Holmes Skinner and Kaleigh Davidson, for appellant.

Candice Suter, for respondent.

Jonathan Rudin and Melissa Atkinson, for intervenor Aboriginal Legal Services of Toronto.

Judgment

The judgment of the court was delivered by

WATT J.A.:

The Background Facts

The Principals

[1] A.R. and N.A. are brothers. Each alleged that a relative, M.C., committed sexual offences on him. It happened, each said, when each was very young.

[2] A.R. recalled two incidents when he was between five and seven years old. N.A. alleged three incidents when he was between six and ten years old.

[3] M.C. testified. He said that the incidents A.R. and N.A. alleged never occurred.

[4] The judge who presided at M.C.'s trial was not satisfied beyond a reasonable doubt about the offences that A.R. alleged, but was convinced about those N.A. said took place.

[5] M.C. (the appellant) appeals. He says that the convictions are flawed because the judge made mistakes in his assessment of the evidence introduced at trial. He also contends that the sentence imposed is unfit.

[6] As I will explain, I am satisfied that the appellant's convictions cannot stand. Given the manner in which trial counsel adduced evidence of the appellant's criminal antecedents, the trial judge could not make an informed assessment of its impact on the appellant's credibility as a witness. He thus erred in relying on that evidence in rejecting the appellant's testimony. In these circumstances, I do not reach the appeal from sentence.

The Circumstances of the Alleged Offences

[7] To appreciate the grounds of appeal advanced and conclusion reached, a brief reference to the circumstances of the alleged offences and the chronology of their disclosure will suffice.

The Principals

[8] N.A. and A.R. are brothers. They lived with their parents on the Saugeen First Nation.

[9] The appellant, who is significantly older than N.A and A.R., also lived with his parents on the Saugeen First Nation. The appellant's mother is the paternal grandmother of N.A. and A.R.

[10] N.A. said the offences happened when he visited the appellant's home. Two took place inside the house, one in a detached garage on the property. They occurred between June 1, 2001 and December 31, 2005.

The Alleged Offences

[11] N.A. testified that the first incident occurred when he was six or seven years old. It happened during the summer when N.A. was alone in the appellant's bedroom. The appellant tickled N.A. on the bed and asked if N.A. wanted to remove his shirt because it was hot. N.A. did so. The appellant then took out his penis and forced N.A. to "stroke it" and "suck his dick". The appellant turned N.A. around, put on a condom and had anal intercourse with N.A. The appellant told N.A. to keep what had happened a secret.

[12] The second incident happened in the fall when N.A. was between the ages of eight and ten years old. N.A. and his family were at the appellant's home for Thanksgiving dinner. N.A. was asked to go to the detached garage to call the appellant for dinner.

[13] N.A. went to the garage where the appellant was working on a stock car. The appellant asked N.A. to help him fix a tail light on the vehicle. N.A. explained that after he had helped with the tail light repair, the appellant "turned me around and he stuck his finger in my ass". The appellant then leaned N.A. against the stock car, put his penis inside N.A. and eventually asked N.A. to stroke his penis until he (the appellant) ejaculated.

[14] The third incident took place in the living room of the appellant's home. N.A. was nine or ten years old. N.A.'s grandparents (the appellant's parents) had gone to Tim Horton's for coffee. When N.A. came out of the bathroom, he noticed that the appellant had taken his penis out of his pants. He pulled N.A. onto his lap. A few minutes later, N.A.'s grandparents returned and the anal intercourse ceased.

The Initial Disclosure

[15] The initial disclosure narrative involved A.R. and was somewhat inconsistent. What does appear clear, however, is that after a verbal altercation between A.R. and the appellant, perhaps in November 2013, A.R. disclosed to his mother that the appellant had "raped him". A.R.'s prior disclosures were of particularized abuse without any mention of the identity of the abuser.

[16] According to N.A.'s mother, when she and A.R. arrived home from the appellant's house, N.A. asked why A.R. was so upset. A.R. disclosed the abuse by the appellant to N.A. who responded "[m]om, he raped me too".

[17] N.A.'s recollection is different. He recalled not having disclosed the abuse prior to police attendance at their home on March 2, 2014.

The Police Disclosure

[18] On March 2, 2014, the complainants' mother called police to report a dispute involving her sons about marijuana use and a trip to Tim Horton's. An officer attended, found the complainants' mother in a very emotional state, and learned that the dispute was about her sons having been hurt as little boys. The officer asked whether the boys had been hurt physically or sexually. Their mother responded "sexually, by a family member".

[19] Both A.R. and N.A. agreed to provide a formal statement and to accompany the officer to the local police detachment to do so. While awaiting another officer who would conduct a formal interview, both A.R. and N.A. told the responding officer that the appellant, their uncle, "used to make them do stuff, sexual stuff" when they were little boys. This had happened at their grandmother's house. N.A. told the officer that full penetration had occurred when he (N.A.) was five, turning six.

The Evidence of M.C.

[20] The appellant testified that he had lived his entire life on the Saugeen First Nation. He denied any suggestion that he ever touched A.R. or N.A. inappropriately or played with them in a sexual way. His evidence was neither more nor less than a simple and flat denial of the allegations.

The Grounds of Appeal

[21] On the appeal from conviction, the appellant advances two grounds of appeal. Each has to do with the manner in which the trial judge scrutinized the evidence adduced at trial, especially the testimony of the appellant, in reaching his conclusion that the appellant's guilt had been established beyond a reasonable doubt.

[22] As I would paraphrase them, the appellant says that the trial judge erred in law

(i) in his treatment of the appellant's previous convictions of driving offences as a significant factor in assessing and rejecting the appellant's evidence; and

(ii) in applying a stricter level of scrutiny in his assessment of the appellant's testimony than he applied to his assessment of N.A.'s evidence.

[23] On the appeal from sentence, the appellant contends that the trial judge erred in

(i) requiring a causal connection between abuse experienced by the appellant and the applicability of the principles in R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 in determining a fit sentence;

(ii) failing to find that the appellant had been subjected to abuse as a child; and

(iii) failing to instruct himself on the impact that background and systemic factors, as well as intergenerational trauma, had on the appellant.

The Appeal from Conviction

Ground #1: The Criminal Record as a Credibility Factor

[24] The first ground of appeal, as it was argued by the parties and the intervenor, Aboriginal Legal Services ("ALS"), involves the interplay between the relevance of prior convictions to the credibility of an accused who testifies and the influence, if any, of Gladue principles on that assessment.

[25] First of all, some background.

The Testimony of the Appellant

[26] In giving evidence on his own behalf, the appellant was questioned by his own counsel and cross-examined by the Crown about drinking, driving and the lack of a driver's licence.

[27] The appellant acknowledged a drinking problem when he was younger. He said that he had gone to jail as a result of drinking and driving charges. His longest period of incarceration had been 90 days. He had also been placed on probation. He admitted that he did not have a driver's licence and did not need one to drive stock cars at nearby Sauble Speedway.

[28] In cross-examination, the appellant acknowledged that he "got into trouble" three or four times for "drunk driving". On four or five other occasions the appellant said he had been convicted for "driving a car when you weren't supposed to", although he could not recall when these troubles had occurred.

[29] Neither counsel asked the appellant about the specifics of any prior convictions. No dates. No offences. No places. No penalties.

The Arguments at Trial

[30] In closing argument at trial, neither counsel referred to the fact or nature of the appellant's prior "troubles" as a factor the trial judge should consider in assessing the appellant's credibility as a witness.

[31] The trial judge did not ask any questions or invite any submissions about the relevance of the appellant's prior convictions to an assessment of his credibility as a witness or the weight, if any, to be assigned to them for that purpose.

The Reasons of the Trial Judge

[32] The trial judge concluded that he did not believe the appellant's denial of the conduct alleged by N.A. Nor did the appellant's testimony raise a reasonable doubt about his guilt.

[33] The trial judge began his assessment of the appellant's testimony by pointing out "a few things" that "troubled" him, aside from the fact that the appellant's denials were irreconcilable with N.A.'s evidence, which the trial judge accepted. Among the trial judge's concerns were

(i) carelessness in responding to questions inviting comparison between two sketches of the inside of the appellant's home;

(ii) a lack of basic common sense;

(iii) an emphatic denial as ever having been alone with either complainant; and

(iv) the appellant's history of crimes of dishonesty.

[34] In connection with the "history of crimes of dishonesty", the trial judge said:

Third and finally, I am concerned about M.C.'s history of crimes of dishonesty. He admitted in cross-examination to have chalked-up four or five convictions for driving while prohibited. That is not surprising, since he has accumulated multiple convictions for drunk driving. A person who repeatedly does what he is prohibited from doing shows a callous disregard for the rules. It is a form of dishonesty.

The Arguments on Appeal

[35] The appellant says that in R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, the Supreme Court of Canada recognized a discretion to exclude evidence of prior convictions if their probative value on the issue of credibility is overborne by their prejudicial effect. This discretion is informed by several factors. No single factor is dispositive, no list of factors complete.

[36] Among the factors which may engage this exclusionary discretion under Corbett are the nature of the conviction as it bears on credibility, on the one hand, and its potential for prejudice through prohibited reasoning on the other; the proximity of the conviction to the time of testimony; the manner in which the defence has cross-examined Crown witnesses. What these factors signal is a focused inquiry on the nature of the conviction and its temporal connection to the time at which the accused testifies.

[37] The appellant accepts that in a jury trial, the Corbett discretion is invoked by a motion at the close of the Crown's case and before the defence is required to make its election about calling evidence. The purpose of the inquiry is to determine which prior convictions have a sufficient bearing on the testimonial trustworthiness of the accused to outweigh any prejudice that may result by inviting propensity reasoning. These convictions may be put to the accused should she or he decide to testify. They will be the subject of a specific instruction by the trial judge about their use during jury deliberations.

[38] The appellant does not suggest that the formal voir dire procedure followed in jury trials should be followed in judge alone trials. But he does contend that the necessary sorting out must be done in closing argument followed by proper self-direction or instruction. The failure to do so here resulted in improper reliance on dated convictions which lacked any persuasive force on testimonial trustworthiness, the only issue on which they had any relevance.

[39] The appellant also invokes Gladue principles as relevant in an assessment of the probative value and prejudicial effect of an Indigenous person's criminal record. A record rooted in systemic factors, rather than as intentional disregard for the law, would result in a prejudicial inference of testimonial dishonesty. In recent years, Gladue principles have been extended beyond sentencing proceedings. No reason in logic or policy forecloses extension of Gladue principles to the discretion for which Corbett provides. The appellant asks this court to receive as fresh evidence the Gladue report prepared for his sentencing to provide an evidentiary foundation for this argument.

[40] In the end, the appellant says, the trial judge erred in relying on the appellant's criminal record in assessing his credibility. The convictions were dated and remote. The judge did not give counsel an opportunity to make submissions about the probative value of the record on the appellant's credibility as a witness. And the judge did not take into account the impact of systemic factors on the accumulation of convictions when gauging their probative value.

[41] The respondent rejects the imposition of any obligation on the trial judge to invite submissions or to self-instruct on the use of prior convictions in assessing the appellant's trustworthiness as a witness. When an accused in a criminal trial assumes the role of a witness in the proceedings, his or her prior convictions are presumptively relevant and thus admissible. Provided the accused has not put his or her character in issue, the prior convictions are of limited admissibility irrespective of the mode of trial -- namely, as a factor to be taken into account in assessing the credibility of the accused as a witness.

[42] Where the accused alleges that his or her prior convictions have no probative value in an assessment of his or her credibility as a witness, it is incumbent on the accused to object to their admissibility. This is so because Parliament has decided by its enactment of s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5("CEA"), that prior convictions are relevant and prima facie admissible as a factor in assessing an accused's credibility as a witness. In a judge alone trial, although no voir dire is required as in a case tried by a jury, an objection is nonetheless required when an accused disputes the relevance, and thus admissibility, of prior convictions on testimonial trustworthiness.

[43] In this case, the respondent says, convictions for driving while disqualified are offences against the administration of justice. These are offences that are relevant to the trustworthiness of an accused as a witness at trial, as they have a direct bearing on whether an oath to tell the truth will bind the conscience of the witness. These offences are entitled to some weight in the credibility assessment. And the weight assigned to them by the trial judge is owed deference in this court.

[44] The respondent takes issue with the relevance of Gladue principles to the analysis required by Corbett. The Gladue report was not prepared for this purpose, nor was any argument raised at trial of the nature advanced here. The respondent submits it is not in the interests of justice to permit the use of the Gladue report for this purpose or to permit the appellant, supported by ALS, to advance the argument for the first time in this court.

[45] To advance the argument on the evidentiary foundation provided by the Gladue report, the appellant must satisfy the court that the report should be admitted as fresh evidence. But, the respondent says, the appellant cannot satisfy the admissibility and cogency requirements which must be met according to the authorities.

[46] The report consists of at least double hearsay, neither level of which would qualify for reception under the principled approach. The relevant statements are unsworn, edited and incomplete. In addition, the respondent continues, the report is not relevant to a decisive issue, not reasonably capable of belief, and not sufficiently probative to have affected the result at trial. Further, although due diligence is not a condition precedent to the admissibility of fresh evidence on appeal, it is nonetheless important in assessing whether the interests of justice require the admission of this evidence. In the absence of any scent of a claim of ineffective assistance of counsel, this evidence could have been gathered for introduction at trial. It was not. Its absence remains unexplained. It should not be admitted in this court.

[47] The respondent also disputes the appellant's right to challenge, for the first time in this court, the admissibility of his criminal record. Trial counsel introduced the fact and nature of the prior convictions at trial. No Corbett application was brought. Nor did the appellant seek its functional equivalent -- a self-instruction about the lack of probative value of some or all of the prior convictions. Further, the influence of Gladue on the discretion recognized in Corbett was never mentioned at trial.

[48] According to the respondent, the appellant has failed to establish the conditions precedent necessary to oust the general prohibition against raising issues for the first time in this court. Contrary to the argument advanced by ALS, the respondent says there is no categorical exception to the prohibition when Gladue principles are being argued. The evidentiary record is insufficient to permit this court to fully, effectively and fairly determine the issue first raised here. At trial, counsel made a strategic decision to introduce those portions of the appellant's record of which complaint is now made. Those convictions gained no prominence in the appellant's cross-examination by the Crown or in closing submissions by either counsel. It ill lies in the mouth of the appellant to complain now about their admissibility. No miscarriage of justice will occur if the proposed argument is not advanced.

[49] The respondent also challenges the appellant and intervenor on the merits of the claim that the Corbett discretion ought to be infused with Gladue principles. Those principles and factors, the respondent says, are tied intimately to the highly individualized process of sentencing through their relationship with the moral culpability of the offender and the sanctions appropriate to the offence of which she or he has been convicted.

[50] The respondent acknowledges that the application of Gladue principles has extended beyond the traditional sentencing scheme. However, the Supreme Court of Canada has confined the principles to other sentencing issues, such as the dangerous and long-term offender regimes and the parole ineligibility provisions for life sentences. Further, that court has declined to extend these principles to other procedural contexts, such as the representativeness of jury rolls and decisions made by Crown prosecutors. Admittedly, this court has gone somewhat further in its application of Gladue principles outside the sentencing context, but the subjects all have an immediate impact on the liberty of an Indigenous person.

[51] In the end, the respondent contends, Gladue principles do not apply to credibility assessments based in part upon an accused's previous convictions. The probative value of prior convictions is a variable, a function of factors such as the number of previous convictions; the nature of the offences; and the proximity of those convictions to the time of giving testimony. There is neither elucidation of the circumstances that underpin the prior convictions, nor consideration of those circumstances in assessing the impact of the convictions on the trustworthiness of the accused as a witness. The inference of testimonial untrustworthiness is derived from the fact, nature and recency of the convictions, not the moral blameworthiness of the offender who committed them, the issue to which Gladue principles are directed.

The Governing Principles

[52] The determination of this ground of appeal involves the interplay of principles that govern

(i) the admissibility and use of prior convictions as factors relevant to an assessment of the testimonial trustworthiness of an accused who testifies;

(ii) the circumstances in which an appellate court will permit an appellant to advance an argument not made at trial;

(iii) the circumstances in which an appellate court will receive fresh evidence in support of a ground of appeal; and

(iv) the extent to which Gladue principles apply to a discretionary decision about the admissibility of evidence.

The Admissibility of Previous Convictions

[53] Section 12(1) of the CEA authorizes questioning of a witness about whether the witness has been convicted of any offence. The provision reflects a legislative judgment by Parliament that evidence of prior convictions is relevant to a witness' credibility; in other words, to the testimonial trustworthiness of the witness: Corbett, at p. 685 S.C.R., per Dickson C.J., and p. 720 S.C.R., per La Forest J. (dissenting); R. v. Brown, [1977] O.J. No. 1220, 38 C.C.C. (2d) 339 (C.A.), at p. 342 C.C.C.

[54] The rationale upon which s. 12(1) admits prior convictions in relation to credibility is that the character of the witness, evidenced by the prior conviction(s), is a relevant fact in assessing the testimonial reliability of the witness: Corbett, at pp. 685-86 S.C.R., citing R. v. Stratton (1978), 21 O.R. (2d) 258, [1978] O.J. No. 3536, 42 C.C.C. (2d) 449 (C.A.), at p. 461 C.C.C.

[55] Courts have been vigilant to circumscribe the extent to which the Crown may use prior convictions of an accused who testifies. Questioning is limited to the facts of the conviction, including the offence of which the accused was convicted; the date and place of the conviction; and the punishment imposed: Corbett, at pp. 696-97 S.C.R.; Stratton, at pp. 466-67 C.C.C.; R. v. Laurier, [1983] O.J. No. 195, 1 O.A.C. 128 (C.A.), at p. 130 O.A.C. The cross-examination cannot extend to the conduct on which the conviction was based, at least in cases where the accused has not put his or her character in issue, or to whether the accused testified at trial: Corbett, at pp. 696-97 S.C.R.; Stratton, at pp. 466-67 C.C.C.

[56] The weight to be assigned to prior convictions in assessing the trustworthiness of the accused as a witness is a variable, not a constant. For example, convictions of offences involving dishonesty or false statements have a greater bearing on whether an accused witness is likely to be truthful: Brown, at p. 342 C.C.C.; Corbett, at pp. 720-21 S.C.R., per La Forest J. (dissenting). Similarly, offences demonstrative of a disregard for court orders or the administration of justice: R. v. Gayle (2001), 54 O.R. (3d) 36, [2001] O.J. No. 1559, 154 C.C.C. (3d) 221 (C.A.), at para. 81, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 359; R. v. Thompson, [2000] O.J. No. 2270, 146 C.C.C. (3d) 128 (C.A.), at para. 31.

[57] In general terms, the probative value of prior convictions with respect to the testimonial trustworthiness of an accused witness varies with the nature and number of prior convictions and their proximity to the time when the accused witness is giving evidence: Corbett, at pp. 720-21 S.C.R., per La Forest J. (dissenting); Brown, at p. 342 C.C.C.

[58] A trial judge has a discretion to exclude evidence of previous convictions when the probative value of those convictions on the issue of testimonial trustworthiness is exceeded by their prejudicial effect. This discretion represents an exception to the general inclusionary rule, which follows from Parliament's legislative determination in enacting s. 12(1) of the CEA, that prior convictions are relevant to a witness' testimonial trustworthiness: Corbett, at p. 697 S.C.R., per Dickson C.J., and pp. 720-22, 739-40 S.C.R., per La Forest J. (dissenting).

[59] No closed list of factors informs the exercise of the exclusionary discretion for which Corbett provides. But some are acknowledged as relevant. The nature of the convictions. The proximity or remoteness of the convictions to the time of the testimony. Any similarity between the previous convictions and the offences charged. And potentially, the need to maintain a balance between the position of the accused and that of a Crown witness whose credibility has been impeached on the basis of prior convictions or otherwise: Corbett, at pp. 740-44 S.C.R., per La Forest J. (dissenting); Brown, at p. 342 C.C.C.; R. v. McManus, [2017] O.J. No. 1372, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.

[60] To invoke the exclusionary discretion in a jury trial, an accused applies at the conclusion of the case for the Crown for an order restricting the number of convictions on which the accused may be questioned should she or he testify: R. v. Underwood, [1998] 1 S.C.R. 77, [1997] S.C.J. No. 107, at paras. 7-9. In a trial without a jury, the need for such a formal application may be questionable: see R. v. A.B., [2016] A.J. No. 1374, 2016 ABQB 733, at para. 33.

First Time Arguments

[61] As a general rule, appellate courts will not permit an issue to be raised for the first time on appeal. The rule is grounded on several concerns:

(i) prejudice to the opponent who lacks the opportunity to respond and adduce evidence at trial;

(ii) absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;

(iii) societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and

(iv) the important responsibility of defence counsel to make decisions that represent a client's best interests and to advance all appropriate arguments throughout the trial.

See R. v. Reid (2016), 132 O.R. (3d) 26, [2016] O.J. No. 3554, 2016 ONCA 524, 338 C.C.C. (3d) 47, at paras. 39-40, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 432, citing R. v. Warsing, [1998] 3 S.C.R. 579, [1998] S.C.J. No. 91, at paras. 16-17, per L'Heureux-Dubé J. (dissenting in part).

[62] A party who seeks to raise a new issue on appeal must satisfy the appellate court that

(i) the evidentiary record is sufficient to permit the appellate court to fully, effectively and fairly determine the issues raised on appeal;

(ii) the failure to raise the issue at trial was not due to tactical reasons; and

(iii) no miscarriage of justice will result from the refusal to raise the new issue on appeal.

See Reid, at paras. 42-43, citing R. v. Brown, [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, at p. 927 S.C.R., per L'Heureux-Dubé J. (dissenting).

[63] A decision whether to grant or refuse leave to a party to advance an argument for the first time on appeal involves the exercise of discretion informed by a balancing of the interests of justice as those interests affect all parties: Reid, at para. 44.

Fresh Evidence on Appeal

[64] Appellate courts may receive evidence on an appeal from conviction where the court considers it in the interests of justice to do so. This broad discretion, for which s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides, takes into account an appellant's interest in avoiding a miscarriage of justice by having the appellate court consider all evidence relevant to the reliability of the conviction. But it also considers the broader societal interest in maintaining the integrity of the criminal justice system by respecting the finality of trial verdicts and acknowledging the respective functions and expertise of trial and appellate courts: R. v. Reeve, [2008] O.J. No. 1680, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 64.

[65] A party who proffers evidence on appeal germane to a fact in issue at trial must be able to provide a satisfactory response to three questions:

(i) Is the evidence admissible under the operative rules of evidence?

(ii) Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict?

(iii) What explanation, if any, is offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence on appeal?

See R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Reeve, at para. 66.

[66] The first requirement -- admissibility -- is straightforward. The evidence proposed for admission on appeal must satisfy the governing admissibility rules of the law of evidence. This includes the hearsay rule: R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 204, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513.

[67] The second requirement -- cogency -- asks three questions:

(i) Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?

(ii) Is the evidence credible in that it is reasonably capable of belief?

(iii) Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

See Manasseri, at para. 205.

[68] Fresh evidence tendered to challenge a factual finding made at trial or to undermine the credibility of a crucial witness or the reliability of a witness' testimony must be sufficiently strong to compel the ordering of a new trial, or else it will not be received on appeal: Manasseri, at para. 217, citing R. v. Maciel, [2007] O.J. No. 1034, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 49, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 258. The cogency inquiry requires a qualitative assessment of the proposed evidence, measuring its probative potential considered in the entirety of the evidence admitted at trial and on appeal: Manasseri, at para. 213.

[69] The final component -- due diligence -- is not a precondition to the reception of fresh evidence on appeal. Due diligence enters play when the requirements of admissibility and cogency have been satisfied. Then, but only then, due diligence becomes a factor to consider in deciding whether "the interests of justice", especially the need for finality, warrant reception of the evidence: Manasseri, at paras. 206, 218-220; Maciel, at para. 50; Reeve, at para. 68.

The Gladue Principles

[70] In R. v. Gladue, the issue was the proper interpretation and application of the sentencing principle contained in s. 718.2(e) of the Criminal Code, which states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[71] The Gladue court concluded that s. 718.2(e) was more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision has two aspects -- codification of a sentencing principle and a direction to sentencing courts to undertake the sentencing of Aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case: Gladue, at para. 33.

[72] The inclusion of the words "with particular attention to the circumstances of Aboriginal offenders" means that sentencing judges must pay particular attention to those circumstances because they are unique and different from those of non-Aboriginal offenders, such that imprisonment may be a less appropriate or less useful sanction for Aboriginal offenders: Gladue, at para. 37.

[73] The purpose of s. 718.2(e) is to respond to the problem of overincarceration in Canada and, in particular, to the more acute problem of the disproportionate incarceration of Aboriginal peoples. Section 718.2(e) and other provisions of Part XXIII encourage sentencing judges to apply principles of restorative justice alongside or in lieu of other, more traditional sentencing principles when making sentencing decisions: Gladue, at para. 50.

[74] In R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, the Supreme Court made it clear that Gladue principles apply to the sentencing of Aboriginal offenders for breaching a long-term supervision order ("LTSO"). Systemic and background factors may bear on the culpability of an offender, to the extent that they shed light on the offender's moral blameworthiness. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. These constrained circumstances will rarely, if ever, nullify the voluntary nature of their conduct, thus their criminal liability. But these circumstances may diminish their moral culpability, an important consideration in the fundamental principle of sentencing -- proportionality: Ipeelee, at para. 73.

[75] The decisions in Gladue and Ipeelee are about the sentencing obligations of judges, the requirement that they craft a proportionate sentence for Aboriginal offenders: R. v. Anderson, [2014] 2 S.C.R. 167, [2014] S.C.J. No. 41, 2014 SCC 41, at para. 25.

[76] These principles do not extend to prosecutorial decisions that have the effect of limiting judicial sentencing options: Anderson, at para. 25. Nor do they have any relevance to the state's obligation to make reasonable efforts to compile jury rolls by random selection from lists that draw from a broad cross-section of society and deliver jury notices to those who have been randomly selected: R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28, at para. 98. Beyond the sentencing context, the reach of these principles has been limited: Anderson, at paras. 26-28.

The Principles Applied

[77] As I will explain, I would give effect to the ground of appeal arising from the trial judge's use of the criminal record, quash the convictions entered at trial and order a new trial on the counts alleging offences against N.A.

[78] In an early portion of his reasons, the trial judge recorded his task in connection with the evidence of the appellant. He wrote:

M.C. testified at trial. He denied any sexual contact of any kind between him and either boy. He denied all of the specific allegations put forward by the boys in terms of each incident that they described.

If I believe the accused, I must acquit him of the charges. If I do not necessarily accept his evidence but find that it leaves me with a reasonable doubt of his guilt, I must acquit him. Even if I am not left with a reasonable doubt as a result of the accused's evidence, I must find him guilty only if the rest of the evidence at trial that I do accept persuades me of his guilt beyond a reasonable doubt.

[79] After a lengthy summary of the allegations of both complainants, the trial judge began his analysis with what he termed "The Bottom Line":

The Bottom Line

I do not believe the accused's denials. Further, I am not left with a reasonable doubt as a result of the accused's evidence.

Regarding the evidence of A.R.-A., as much as I feel great empathy for the young man, I cannot safely rely upon his evidence.

As for N.A., I found him to be a credible and reliable witness. I accept his evidence as to what M.C. did to him.

[80] The trial judge then turned to the testimony of the appellant. He began:

Aside from the fact that M.C.'s denials are irreconcilable with the evidence of N.A., whose evidence I accept, I am troubled by a few things about the evidence of the accused.

[81] The trial judge then proceeded to explain why he did not believe the appellant's evidence and why that evidence did not raise a reasonable doubt about the appellant's guilt. As noted above, among his reasons was the appellant's "history of crimes of dishonesty":

Third and finally, I am concerned about M.C.'s history of crimes of dishonesty. He admitted in cross-examination to have chalked-up four or five convictions for driving while prohibited. That is not surprising, since he has accumulated multiple convictions for drunk driving. A person who repeatedly does what he is prohibited from doing shows a callous disregard for the rules. It is a form of dishonesty.

[82] It was of course open to the trial judge to reject the testimony of the appellant that the conduct alleged by N.A. never occurred. But his reasons for doing so must be free of legal error.

[83] In this case, the trial judge's rejection of the appellant's evidence because of his "history of crimes of dishonesty" is fatally flawed for several reasons.

[84] As we have seen, s. 12(1) of the CEA permits a witness to be questioned about prior convictions of offences. This enactment reflects a legislative determination that prior convictions are relevant to the testimonial trustworthiness of a witness. And we have also seen that the proper manner in which the witness is to be questioned involves being asked about the offence, the place and date of the conviction and the punishment imposed. These details assist the trial judge in assigning the weight, if any, to the convictions when assessing the witness' testimonial trustworthiness.

[85] In this case, the manner in which counsel at trial adduced evidence about the appellant's "troubles" deprived the trial judge of the information necessary to make an informed assessment of the impact, if any, of the prior convictions on the appellant's credibility as a witness. No description of the offence. No dates of conviction. No punishment imposed. The descriptive "drunk driving" does not assist in the absence of a Criminal Code provision creating such an offence.

[86] Further, the reference to the appellant's "history of dishonesty" seems at once speculative and sits uncomfortably close to the use of propensity reasoning. Reasonable people may differ about whether the Criminal Code offence of driving while disqualified is an offence of dishonesty or more properly characterized as an offence against the administration of justice. However characterized, without any details about the number and proximity of the convictions, nothing informed could be said about their impact on testimonial trustworthiness.

[87] In these circumstances, it becomes unnecessary to consider the impact, if any, of Gladue principles on the exercise of the Corbett discretion under s. 12(1) of the CEA, as well as the motion to introduce fresh evidence in support of that argument raised for the first time in this court.

Conclusion

[88] For these reasons, I would allow the appeal, set aside the convictions and order a new trial on those counts of which the appellant was convicted.

Appeal allowed.

End of Document