COURT OF APPEAL FOR ONTARIO

DATE: 20020124
DOCKET: C35401

ROSENBERG, GOUDGE AND FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Sean R. Fraser For the appellant

Respondent

• and -

BRENDON McFADYEN

Shelley Hallett For the respondent

Appellant

Heard: January 11, 2002

On appeal from the conviction by Justice Bruce A. Glass dated April 26, 2000 and on appeal from the sentence imposed by Justice Bruce A. Glass dated June 23, 2000.

GOUDGE J.A.:

[1] The appellant was charged with committing a sexual assault on the complainant in February 1993. On April 26, 2000, the jury found him guilty and he was subsequently sentenced to five years imprisonment. He appeals from both his conviction and his sentence.

[2] The sole ground raised on the conviction appeal is that the trial judge erred in dismissing the appellant’s Corbett application and permitting the Crown to cross-examine him on his criminal record. For the reasons that follow, I agree with this submission and would therefore allow the appeal and order a new trial.

[3] Prior to the trial, the appellant brought an application to exclude evidence of his previous convictions. All of the convictions were for sexual offences: one in 1981 for indecent assault on a female; one in 1984 for sexual assault; and one in 1986 for two counts of sexual assault and for two counts of indecent assault on a female.

[4] In this proceeding the appellant’s defence was that the sexual intercourse alleged was consensual. It was clear from the beginning that credibility would be the central issue at trial with the complainant giving one version of her encounter with the appellant and the appellant giving another.

[5] The appellant’s position on the application was that the prejudicial effect of having this record before the jury would outweigh its probative value. The Crown’s position was that without the record the appellant would have a one-sided feature to his trial given that he would be putting his credit in issue by denying the complainant’s allegations.

[6] After reciting the positions of the parties and quoting from the reasons of Dickson C.J.C. in R. v. Corbett, [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385 the trial judge dismissed the appellant’s application on the following basis:

I recognize that the presentation of questions with respect to any criminal record has some prejudicial effect upon the person on trial. Because credibility of the complainant and the defendant will be a central issue in the trial, I am persuaded that the Crown should be permitted to cross-examine Mr. McFadyen on his criminal record for that limited purpose. I adopt the reasoning of the former Chief Justice Dickson in the Corbett decision in stating that it is preferable to give the jury all relevant information provided that the members of the jury are instructed on its limited use. To prevent the presentation of this record in cross-examination would in effect create a lopsided presentation of the credibility of the complainant and the defendant. The jury can be properly instructed on how they can use this information so that they do not make a leap of assumption of guilt.

Therefore, I find that the probative value outweighs the prejudicial effect of this evidence, the defence application is dismissed, and the Crown will be permitted to cross-examine Mr. McFadyen on his criminal record. [Emphasis added.]

[7] In this court, the appellant does not challenge the trial judge’s charge to the jury on the limited use they could make of the appellant’s criminal record. However, he does challenge the basis upon which the trial judge determined to admit that record in the first place.

[8] I recognize that the decision made on a Corbett application is a matter of discretion and that absent a clear error in the exercise of that discretion this court should not interfere in order to substitute its own view of how that discretion should have been exercised. See R. v. P.(G.F.) (1994), 18 O.R. (3d) 1 at 5 (Ont. C.A.).

[9] In my view, in this case the trial judge did make such an error. In essence, he admitted the appellant’s record simply on the basis that the credibility of the complainant and the appellant would be a central issue at the trial. The Corbett process rather requires a weighing of the factors relevant to the prejudicial effect and the probative value of the previous convictions, against the backdrop that the general course of preference 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.

[10] In this case the balancing of these factors requires that the appellant’s record be excluded because of its very significant prejudicial effect and its minimal probative value. In R. v. Batte (2000), 145 C.C.C. (3d) 498 at 516 (Ont. C.A.) Rosenberg J.A. said this:

[48] In Corbett, while Dickson C.J.C. disagreed with La Forest J. as to whether the record should be admitted, he accepted the factors that should be taken into account in the exercise of the judge’s discretion. Among the most important factors enumerated by La Forest J. at pp. 740-44 are: the nature of the previous conviction, the remoteness or nearness of the conviction to the present charge, whether it is a conviction for a similar offence (in which case there is a greater risk of prejudice to a fair trial), and the nature of the defence attack on the Crown witnesses.

[11] The previous convictions were all at least 14 years old at the time of the appellant’s trial. The fact that since his convictions the appellant has apparently led a legally blameless life for a long period of time substantially diminishes the relevance these convictions may have for his credibility.

[12] Moreover, the prior convictions were for offences similar to the one for which the appellant was on trial. The Crown does not advance them as similar acts. The prejudicial effect of the appellant’s record is markedly greater given that the convictions were for offences of a similar kind.

[13] Finally, the appellant’s attack on the complainant’s credibility was not based on any assertion that she had a bad character or a criminal record of her own. There was no need on this score to balance the picture for the jury as there was in Corbett.

[14] Thus, all of these factors weigh against the admission of the prior convictions.

[15] In this court, the Crown argued that the admission of the record was proper because the complainant testified that after her encounter with the appellant he called her to apologize, saying that he had never done anything like this before. The appellant denied making any such call.

[16] In my view, the Crown’s argument is unpersuasive. While the appellant’s prior convictions are inconsistent with his statement as reported by the complainant, those convictions are of no help in evaluating his credibility at trial when he denies making the statement altogether. Further, the accused did not place his character in issue, so as to make the record admissible. It was the Crown that chose to lead the statement. Crown counsel at trial did not suggest that it could use the accused’s record to prove the statement was untrue and thus evidence of consciousness of guilt. It was content to lead the “apology” as an admission.

[17] In summary, I am of the opinion that the trial judge made a clear error in the exercise of his discretion on the appellant’s Corbett application. In the circumstances of this case, particularly that they are such old convictions and for similar offences, that error requires a new trial.

[18] I would therefore allow the appeal, set aside the conviction and order a new trial.

Released: “MR” January 24, 2002

“S.T. Goudge J.A.”

“I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”