R. v. Underwood, [1998] 1 S.C.R. 77

Garry Richard Underwood Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Underwood

File No.: 25787.

Hearing and judgment: December 4, 1997. Reasons delivered: January 22, 1998.

Present: Lamer C.J. and Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Trial ‑‑ Procedure ‑‑ Proper time to rule on defence’s application to exclude accused’s prior criminal record ‑‑ Whether trial judge erred in refusing to rule on application until after accused had testified.

Criminal law ‑‑ Evidence ‑‑ Cross‑examination of accused ‑‑ Previous convictions ‑‑ Corbett application ‑‑ Proper time to rule on defence’s application to exclude accused’s prior criminal record.

The accused was charged with first degree murder. At trial, he had planned to testify in his own defence but, after the Crown closed its case, his counsel made a Corbett application to have the accused’s lengthy criminal record excluded. The trial judge did not make a ruling at that time, but rather indicated that he would prefer to wait until the accused had given his testimony in chief, as one of the determining factors is the nature of the evidence adduced by the defence. The accused elected not to testify. He was later convicted and his conviction was upheld by the Court of Appeal.

Held: The appeal should be allowed and a new trial ordered.

Our criminal process is based upon the principle that before the accused calls evidence in his own defence, he must have knowledge of the case to be met. The extent to which his criminal record will be admissible against him will encompass part of that case. Hence, a Corbett application should be made by the defence and decided by the trial judge immediately after the close of the Crown’s case. If the trial judge believes it to be necessary, a voir dire should be held in which the defence discloses what evidence it intends to call, so the trial judge can make a fully informed ruling on the application. This voir dire is not “defence disclosure” and creates no independent rights in the Crown. The defence always retains the right to lead evidence which was not disclosed at the voir dire. However, the trial judge’s ruling on the application may be subject to modification if the defence evidence departs significantly from what was disclosed. In this case, the trial judge refused to rule until after the accused had testified, and in so doing, he erred. Because the trial judge’s error resulted in the accused declining to testify in his own defence, this is not an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. It cannot be said with confidence that there is no reasonable possibility that the verdict would have been different absent the error of law.

Cases Cited

Referred to: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451; Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350; R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555; R. v. Ford (1995), 1995 CanLII 7303 (ON SC), 34 C.R.R. (2d) 143; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 12.

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

Authors Cited

Delisle, R. J. Annotation to R. v. Hoffman (1994), 1994 ABCA 254, 32 C.R. (4th) 396.

APPEAL from a judgment of the Alberta Court of Appeal (1995), 1995 ABCA 412, 174 A.R. 234, 102 W.A.C. 234, 102 C.C.C. (3d) 281, [1995] A.J. No. 906 (QL), dismissing the accused’s appeal from his conviction on a charge of first degree murder. Appeal allowed and new trial ordered.

Peter J. Royal, Q.C., for the appellant.

Goran Tomljanovic, for the respondent.

The judgment of the Court was delivered by

The Chief Justice --

I. Introduction

[1] In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, a majority of this Court held that s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (formerly R.S.C. 1970, c. E-10), conferred a discretion on the trial judge to exclude all or part of an accused’s prior criminal record, where the probative value of that record is outweighed by its prejudicial effect. In this case, the Court must decide at what stage in the trial proceedings an accused is entitled to a ruling on his or her application to have all or part of the record excluded (a so-called Corbett application).

II. Facts and Judgments Below

[2] It is not necessary to go into the facts in extensive detail, as most are not relevant to the outcome of this appeal. The appellant was charged with first degree murder in the shooting of Patrick William Campbell. After the appellant changed counsel several times, the trial got under way. The appellant had planned to testify in his own defence but, after the Crown closed its case, his counsel made a Corbett application to the trial judge. The appellant’s criminal record was extensive, to say the least. He had been convicted of numerous thefts, assaults of varying severity, robbery, some weapons offences, threatening, wilful damage, failure to attend, failure to appear, obstructing a peace officer, trafficking in a narcotic, and impaired driving.

[3] The trial judge did not make a ruling at that time, but rather indicated that he would prefer to wait until the appellant had given his testimony in chief, as one of the determining factors is the nature of the evidence adduced by the defence. The appellant then advised his counsel that he would not be testifying, and the defence closed its case. The appellant was convicted of first degree murder.

[4] In a unanimous, unattributed judgment reported at (1995), 1995 ABCA 412, 174 A.R. 234, 102 W.A.C. 234, 102 C.C.C. (3d) 281, [1995] A.J. No. 906 (QL), the Alberta Court of Appeal briefly reviewed the decision in Corbett and noted that this Court did not decide at what point in the trial the Judge should rule on the exclusion of the accused’s previous convictions. The Court of Appeal agreed with the trial judge that the Corbett application could not be decided in a vacuum. They therefore concluded that the appellant is not entitled to have the admissibility of the record determined in advance of the decision to testify. The proper course would have been to conduct a voir dire to determine the admissibility of the appellant’s record when the trial judge believed he had all the requisite information. However, it could not be said that the trial judge would have failed to conduct a voir dire had the appellant elected to testify.

III. Analysis

[5] The question which the Court must answer in this case is whether it is an error of law to refuse to make a ruling on a Corbett application before the accused has elected to testify and been examined in chief. On the one hand, it would be very undesirable to force the trial judge to make a decision without all the relevant information. On the other hand, the accused must have an opportunity to make an informed decision whether to testify and, accordingly, should know as much as possible about the consequences of that decision in advance of having to make it.

[6] A balance must be struck between these two necessities. However, the balance must reflect that the ultimate goal of the procedural and substantive protections in the criminal justice system are to ensure that trials are scrupulously fair. Our criminal process is based upon the principle that before the accused calls evidence in his own defence, he must have knowledge of the case to be met. The extent to which his criminal record will be admissible against him will encompass part of that case. The “case-to-meet” principle is a fundamental tenet of the criminal justice system, firmly rooted in the common law and an integral part of the principles of fundamental justice (R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451), which are protected by s. 7 of the Canadian Charter of Rights and Freedoms. It is part of the broader principle against self-incrimination, which has its roots in the presumption of innocence and the power imbalance between the state and the individual. See Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, and R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 578.

[7] In this context, the case-to-meet principle suggests that the accused should have a right to make a Corbett application, and to know its outcome at the close of the Crown’s case. It would be manifestly unfair to force an accused to engage in what the appellant describes as “russian roulette”, or what Professor Delisle, in an annotation to R. v. Hoffman (1994), 1994 ABCA 254, 32 C.R. (4th) 396, at p. 398, calls “blind man’s buff”. I would adopt the statements of Lederman J. in R. v. Ford (1995), 1995 CanLII 7303 (ON SC), 34 C.R.R. (2d) 143 (Ont. Ct. (Gen. Div.)), at p. 146:

I ask rhetorically why should the accused not know of this information at the close of the Crown’s case? Why should counsel have to guess at what the outcome of a Corbett application will be in making the decision to call the accused as a witness?

There is no valid reason for delaying the application so as to place the accused in the irrevocable position of having given up his or her right to silence on the chance that a Corbett application will go his or her way.

The Corbett application should not be a bear trap for the accused. Increasingly, courts have said that the accused should know before he or she calls any evidence the full extent of the case he or she has to meet. In keeping with those principles the proper time to bring a Corbett application is upon the completion of the Crown’s case.

[8] Although fairness requires that the ruling be made no later than the close of the Crown’s case, there is always the possibility that the defence evidence will influence the trial judge’s prior evaluation of the probative value and prejudicial effect of the criminal record. There are various ways of dealing with this problem. One is the possibility of making a preliminary ruling, subject to reconsideration if necessary. However, this may be no less of a “bear trap” for the accused than refusing to make a ruling at all. Imagine the possible unfairness that would arise if the accused takes the stand in reliance on a ruling that some or all of his prior convictions will be excluded, and that ruling is subsequently reversed.

[9] In my view, the situation can be resolved by holding a voir dire before the defence opens its case. In this voir dire, the defence will reveal the evidence which it intends to call, either through calling witnesses, or through agreed statements of fact. The trial judge can then consider the factors set out in Corbett (the nature of the previous convictions, the time since the previous convictions, and any attacks made on the credibility of Crown witnesses) in the context of the defence evidence, and make a final ruling on the Corbett application.

[10] I would emphasize that the purpose of this voir dire is not “defence disclosure”. It creates no independent rights in the Crown, and, therefore should not be treated as an excuse for the Crown to deeply probe the case for the defence, as the defence is entitled to do to the Crown’s case at a preliminary inquiry. The point is to provide the trial judge with the information he or she needs to make an informed decision, but the Crown has no right to require more than that. There may even be cases in which the trial judge believes he or she has sufficient information to make a decision without such disclosure, such as where the nature of the defence is fairly clear or has otherwise been disclosed (e.g. an alibi), or where the outcome of the application is readily apparent without this information. In those cases, disclosure need not be given.

[11] I should make it clear that this is not a form of “Stinchcombe in reverse”. The accused always retains the right to lead evidence which was not disclosed at the voir dire. However, if the accused fails to disclose evidence, and the trial judge believes that the undisclosed evidence would have had a material impact on the Corbett application, he or she can change his or her ruling when that evidence is lead.

[12] In the case at bar, the trial judge refused to rule on the Corbett application until the appellant had elected to testify and been examined in chief. For the reasons described above, this was an error of law. The Crown has argued that there was no substantial wrong or miscarriage of justice, and the Court should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, to dismiss the appeal. I must disagree. It is clear that the trial judge’s refusal to make a ruling adversely affected the appellant’s decision whether to testify in his own defence, as he had a right to do. We have no way of knowing what the appellant might have said, and therefore, we cannot say with confidence that there is no reasonable possibility that the verdict would have been different absent the error of law (which is the test for the application of the proviso — R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599).

IV. Conclusion

[13] In summary, a Corbett application should be made after the close of the Crown’s case. If the trial judge believes it to be necessary, a voir dire should be held in which the defence discloses what evidence it intends to call, so he or she can make a fully informed ruling on the application. This ruling may be subject to modification if the defence evidence departs significantly from what was disclosed. In this case, the trial judge refused to rule until after the appellant had testified, and in so doing, he erred. Because the trial judge’s error resulted in the appellant declining to testify in his own defence, this is not an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii). I would therefore allow the appeal and order a new trial.

Appeal allowed and new trial ordered.

Solicitors for the appellant: Royal McCrum Ducket & Glancy, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.