ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 11-40000649-0000
DATE: 20120618
BETWEEN:
DELROY ALEXANDER Applicant – and – HER MAJESTY THE QUEEN Respondent
M. Luft for the Mr. Alexander
J. Leishman for the Crown
HEARD: June 8 and 11, 2012
THORBURN J.
RULING ( Corbett Application)
I. Order Sought to Prevent Disclosure of the Accused’s Criminal Record
[ 1 ] The Applicant, Delroy Alexander, is charged with possession of a loaded firearm and ammunition, careless storage of the firearm, possession of cocaine, possession of cocaine for the purpose of trafficking and possession of the proceeds of crime.
[ 2 ] Alexander seeks to exclude his convictions for all drug related offences, break and enter, and all gun related offences from evidence at trial. The Defence does not seek to exclude his convictions for failure to comply with the terms of his recognizance and convictions for theft not exceeding five thousand dollars from evidence at trial.
II. Preliminary Considerations
[ 3 ] Rule 31.01 of the Superior Court of Justice , Criminal Proceedings Rules provides that evidence of prior criminal convictions of an accused is presumptively admissible. Where the Defence seeks to exclude some or all of an accused’s criminal record, Rule 31.03(2) of the Rules provides certain criteria to be provided, such as a summary of the evidence upon which the Defence relies.
[ 4 ] In R. v. Underwood , 1998 839 (SCC) , [1998] 1 S.C.R. 77, Lamer C.J.C. held that the Corbett Application should be argued after the close of the Crown’s case and before the defence opens its case. In the voir dire , the accused “will reveal the evidence which it intends to call, either through calling witnesses, or through agreed statements of fact.” (para. 9). The trial judge can then consider 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 evidence, and make a final and informed ruling on the Corbett application.
[ 5 ] Upon receipt of the ruling, the accused will understand the consequences of testifying.
III. The Law
[ 6 ] Section 12 of the Canada Evidence Act permits any witness, including an accused, to be cross-examined on his or her criminal record. Prior convictions are relevant to the credibility of a witness, including an accused who chooses to give evidence:
What lies behind section 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility. (Dickson C.J.C. in R. v. Corbett, (1988), 1988 80 (SCC) , 41 C.C.C. (3d) 385 (S.C.C.) at p. 395.)
[ 7 ] The ultimate task of the trial judge is to determine whether or not the probative value of the evidence of prior convictions exceeds the risk of prejudice to a fair trial. The concern for a fair trial is the key consideration. Fairness of the trial requires the Court to consider satisfaction of “the public interest in getting at the truth, while preserving basic procedural fairness to the accused”: ( R. v. Harrer , 1995 70 (SCC) , [1995] 3 S.C.R. 562 at para. 45 .)
[ 8 ] The trial judge should err on the side of inclusion.
[C]oncealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture. ... Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. ... We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything with a careful explanation as to any limitations on the use to which they may put that information.” ( R. v. Corbett , supra at pp. 399-401. See also R. v. Hines (2001), 49 W.C.B. (2d) 486 (Sup. Ct.) .)
[ 9 ] “Convictions for offences involving dishonesty or false statements have a greater bearing on the question of whether a witness is or is not likely to be truthful”. ( R. v. Brown (1978), 1978 2396 (ON CA) , 38 C.C.C. (2d) 339 (Ont. C.A.) at p. 342 per Martin J.A.)
[ 10 ] A jury could reasonably conclude that a pattern of prior convictions reflects a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie. ( R. v. Charland (1996), 1996 7284 (AB CA) , 110 C.C.C. (3d) 300 at p. 313 (Alta. C.A.), aff’d by 1997 300 (SCC) , [1997] 3 S.C.R. 1006.)
[ 11 ] A trial judge has the discretion to exclude prejudicial evidence of previous convictions in appropriate cases where inclusion would undermine the accused’s right to a fair trial. ( R. v. Corbett , 1988 80 (SCC) , [1988] 1 S.C.R. 670 at p. 400.) This includes circumstances where the convictions are of limited value in assessing the credibility of the accused but where their disclosure would be highly prejudicial.
[ 12 ] In determining how the discretion to exclude prior convictions is to be exercised, the court in R. v. Corbett held that the following factors should be considered:
(1) the nature of the previous convictions;
(2) the remoteness or nearness of the previous convictions to the present charge (recent charges may have more probative value but greater prejudicial effect);
(3) the similarity of the previous convictions to the charge at issue (previous convictions for the same crime should be admitted sparingly, particularly where there are multiple convictions for various other kinds of offences); and
(4) whether or not there has been a deliberate attack on the credibility of a Crown witness, particularly where the resolution of the case boils down to a credibility contest between the accused and that witness.
[ 13 ] In balancing the probative value against the prejudicial effect of the defendant's criminal record, the court must be particularly careful where the criminal record includes a conviction like, or related to, the alleged offence: (See R. v. Brooks (1998), 1998 5686 (ON CA) , 41 O.R. (3d) 661 at para. 72 (Ont. C.A.); R. v. Brand (1995), 1995 1540 (ON CA) , 98 C.C.C. (3d) 477 at p. 480 (Ont. C.A.) and R. v. Saroya (1995), 1994 955 (ON CA) , 36 C.R. (4th) 253 (Ont. C.A.)). The more similar the previous convictions are to the charges in the case before the court, the greater the prejudice occasioned by admitting the prior convictions. ( R. v. Corbett , supra at para. 156 .)
[ 14 ] In R. v. Brand (1995), 1995 1540 (ON CA) , 98 C.C.C. (3d) 477 (Ont. C.A.) for example, the accused was charged with trafficking in crack cocaine. He was cross-examined on his criminal record which included a record for crimes of dishonesty and three convictions for trafficking in narcotics. The Ontario Court of Appeal granted a new trial. One of the grounds for the new trial was that the trial judge applied the wrong test in admitting the evidence. The court commented that the narcotics convictions had no probative value with respect to the appellant's credibility, and were highly prejudicial. The court also stated that, in any event, the jury had sufficient information on which to judge credibility, without the evidence of the prior convictions.
[ 15 ] Where much is made of the prior criminal records of Crown witnesses by the Defence, “concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture”. ( R. v . Corbett , supra at para. 34 .)
[ 16 ] There is a distinction to be drawn between an attack on the character of a Crown witness and attempts by the Defence to meet the prosecution’s evidence that incidentally has an effect on the witness’ character. ( R. v. Batte (2000), 2000 5750 (ON CA) , 145 C.C.C. (3d) 498 (Ont. C.A.) at paras. 46-47 .)
[ 17 ] Where a reference to the criminal record is appropriate, the jury must be instructed that prior criminal convictions may not be used as evidence of a propensity to commit crimes like the offences in question. ( R. v. Corbett , supra , at p. 399.)
IV. The Relevant Facts
The Criminal Record
[ 18 ] Alexander has a criminal record for the following offences:
(a) November 27, 2000 – Uttering threat, possession of a Schedule II substance and mischief under;
(b) June 8, 2001 – Theft Under, FTC undertaking and carrying a concealed weapon;
(c) September 26, 2002 – Break and enter and possession of property obtained by crime;
(d) March 9, 2005 – Assault;
(e) October 19, 2005 – Possession of a schedule I substance;
(f) July 19, 2007 – Possession of a prohibited firearm with ammunition, possession of a firearm or ammunition contrary to a prohibition order and possession of a schedule I substance for the purpose;
(g) November 26, 2007 – Discharge of a firearm with intent;
(h) May 4, 2009 – P4P marijuana and FTC probation; and
(i) August 22, 2009 – FTC recognizance, FTC probation, P4P cocaine and possession of cocaine.
[ 19 ] Several Crown witnesses testified that they conducted surveillance on 61 Neptune Drive, Unit 105, they observed Alexander leave the premises on the morning of August 27, 2010 just after 10 a.m., he drove to another location, picked up a passenger and was then arrested by police.
[ 20 ] One officer testified that he observed Alexander push a clear plastic bag containing a white substance to the floor of the vehicle. A minute or two later, police found a bag containing cocaine in the vehicle.
[ 21 ] After Alexander’s arrest, police returned to 61 Neptune Drive. A search warrant was executed several hours later and police found a loaded prohibited firearm with ammunition, cocaine, crack cocaine, marijuana and large sums of money in the bedroom of the apartment.
[ 22 ] Alexander’s counsel indicated that he will ask the jury to conclude that one or more of the Crown witnesses (all of whom were police officers) were lying. He will suggest that the officers may have moved the evidence including Alexander’s identification, the firearm, drugs and money such that it would appear that they belonged to Alexander.
V. The Positions of the Parties
Submissions Made on Behalf of Alexander
[ 23 ] Alexander`s position is that his convictions for drug and weapons offences should be excluded from the criminal record to be seen by the jury as they have little or no probative value as these are not crimes of dishonesty. Moreover, these convictions are highly prejudicial as they are very similar or identical to the offences he is charged with in this proceeding and most are recent convictions. Alexander argues that there is therefore a danger that if these convictions are brought to the attention of the jury, the jury may engage in propensity reasoning to conclude that because he was convicted of these types of offences in the past, Alexander is the kind of person who would engage in drug trafficking and possession of weapons and must have done so in this case.
[ 24 ] Although counsel for the co-accused, Cindy Delgado-Flores canvassed one officer’s past disreputable conduct involving matters unrelated to this proceeding, Alexander did not and the determination on this Corbett application should not be affected by the cross-examination conducted on behalf of his co-accused.
[ 25 ] Finally, there is no imbalance because the jury will know Alexander has a criminal record and his consequent disregard for the law, as several entries will remain on his criminal record.
[ 26 ] In the alternative, if the weapons related offences are included, Alexander claims the wording should be changed and the sentences imposed should not be put into evidence.
Submissions Made on Behalf of the Crown
[ 27 ] The Crown submits that evidence of Alexander’s criminal record and consequent disregard for the law, is relevant to his credibility. He has a steady stream of convictions including serious convictions for weapons related offences and drug trafficking for ten years prior to his arrest on these charges.
[ 28 ] The Crown claims that all of the Crown witnesses (and they were all police officers) were questioned by Defence counsel at some length about whether they accurately recorded what had happened, the timeliness of the recording of their notes and whether evidence was moved. Moreover, the Defence (on behalf of the co-accused, Delgado-Flores) cross-examined Officer Frederick suggesting he was guilty of disreputable conduct in a matter unrelated to this proceeding. Although counsel for the co-accused asked the questions, the fact that this evidence was brought before the jury affects the trial process on this key issue of credibility as to whether Crown or Defence witnesses should be believed.
[ 29 ] The Crown’s position is that if only a minor part of Alexander’s criminal record is placed into evidence, this would deprive the jury of information relevant to Alexander’s credibility and create a serious risk that the jury will be presented with a misleading picture.
VI. Analysis and Conclusion
[ 30 ] I have considered the factors set out in R. v. Corbett set out above, in order to determine whether or not the probative value of the evidence of prior convictions exceeds the risk of prejudice to a fair trial.
[ 31 ] Counsel for the co-accused attacked the credibility and character of a key Crown witness by asking questions about prior conduct unrelated to the officer’s involvement in this proceeding. However, counsel for Alexander restricted his questions to repudiation of the allegations made by the Crown and questioning the Crown witness’ account of the events pertaining to this case. Alexander’s right to a fair trial should not be prejudiced by the actions of counsel for his co-accused.
[ 32 ] However, this is but one of the relevant factors to be considered. The key is to ensure trial fairness for this accused.
[ 33 ] Alexander’s counsel has advised that credibility is a key issue in this case. His suggestion to the jury will be that Alexander’s pieces of identification were not located where he had left them and that Crown witnesses could have lied when they testified that the photographs showing the items found in the apartment were located in the place shown in the photographs taken at the time of the execution of the search warrant.
[ 34 ] Given the credibility contest in this case, in order to properly assess Alexander’s credibility, the jury should have before it a representative picture of his criminal convictions including crimes of dishonesty.
[ 35 ] I do not agree with Alexander`s counsel that reference to five minor offences when Alexander has been convicted of 23 previous offences, some of which are for serious offences, would be sufficient to create a fair and balanced picture of his history of telling the truth and regard for the rules of society.
[ 36 ] Cross-examination of the accused in general allows the jury to make an informed assessment of the credibility of the competing versions of events. ( R. v. Corbett , supra , at pp. 437-38; R. v. Peterpaul (2001), 2001 24119 (ON CA) , 52 O.R. (3d) 631 at para. 11 (Ont. C.A.).)
[ 37 ] On the other hand, several entries on Alexander’s record deal with drug and weapons related offences: the same offences he is charged with in this proceeding. I note that the Court of Appeal in Brand was of the view that drug convictions are of “no probative value” in assessing the credibility of the accused.
[ 38 ] I have considered the danger that the firearm, drug possession and drug trafficking convictions could lead to propensity reasoning that Alexander is the type of person who would use physical force against another. For this reason all of the firearms and drug related convictions will be removed from the record to be presented to the jury should Alexander choose to testify.
[ 39 ] Therefore, the following entries on Alexander’s criminal record may be canvassed at trial if Alexander elects to testify:
November 27, 2000 – Uttering a threat, and mischief under (times 2);
June 8, 2001 – Theft Under, FTC undertaking and carrying a weapon;
September 26, 2002 – Break and enter, and possession of property obtained by crime;
March 9, 2005 – Assault;
November 26, 2007 – aggravated assault causing bodily harm;
May 4, 2009 –FTC probation; and
August 22, 2009 – FTC recognizance, FTC probation.
[ 40 ] If Alexander chooses to testify, the jury will be clearly instructed that his convictions may not be used as evidence of his propensity to commit crimes. They may only be used to assess his credibility.
Thorburn J.
Released: June 18, 2012
COURT FILE NO.: CR 11-40000649-0000
DATE: 20120618
ONTARIO SUPERIOR COURT OF JUSTICE
DELROY ALEXANDER – and – HER MAJESTY THE QUEEN
Ruling Thorburn J.
Released: June 18, 2012