ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30325
DATE: 2012/10/30

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN
Crown

– and –

TOBY LITTLE OTTER LAND
Accused

David Elhadad and Carl Lem, for the Crown

Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: October 22 , 2012

MID-TRIAL RULING #1 REGARDING CORBETT

AITKEN j.

Nature of the Application

[ 1 ] Mr. Land stands charged with the second degree murder of Dominic Doyon on May 4, 2009. At the commencement of the trial, Mr. Land pled guilty to manslaughter – a plea which the Crown would not accept. The central issue in this case is whether Mr. Land had the requisite mental state for murder. If he did, the secondary issue is provocation. In this context, in addition to all other evidence, the jury will have to consider evidence as to: (1) whether Mr. Doyon responded to Mr. Land’s verbal attack by drawing a sword and threatening Mr. Land with it; (2) whether Mr. Land was provoked when he assaulted Mr. Doyon; (3) whether Mr. Land or Carl St-Cyr, a former co-accused who pled guilty to manslaughter, was the person who wielded the sword that dealt the fatal blow to Mr. Doyon; (4) whether Mr. Land lied to the police about Mr. St-Cyr’s actions at the time of Mr. Doyon’s death in order to protect Mr. St-Cyr; and (5) whether Mr. St-Cyr lied to the police about Mr. Land’s actions at the time of Mr. Doyon’s death in order to protect himself. Credibility issues are central in this case.

[ 2 ] At the close of the Crown’s case, the Defence brought an application under R. v. Corbett , 1988 80 (SCC) , [1988] 1 S.C.R. 670 seeking an order that, if Mr. Land testifies, the Crown will be prohibited from tendering evidence in regard to seven entries on Mr. Land’s criminal record relating to assaults and robberies. I made a ruling, as set out under the Disposition heading below, and undertook to provide written reasons. These are those reasons.

Mr. Land’s Criminal Record

[ 3 ] Mr. Land’s date of birth is June 2, 1984. He was just shy of 25 years of age when Mr. Doyon was killed.

[ 4 ] Mr. Land’s youth court record is as follows:

• September 9, 1999 (age 15)

o Break and enter and commits an indictable offence (12 months probation)

o Assault (12 months probation concurrent)

o Failure to attend court (12 months probation concurrent)

• November 25, 1999 (age 15)

o Assault (3 months open custody and 12 months probation)

o Uttering threats (3 months open custody and 12 months probation concurrent)

o Failure to comply with disposition (3 months open custody and 12 months probation concurrent)

• April 7, 2000 (age 16)

o Escape lawful custody (6 months open custody and 12 months probation)

o Robbery (6 months open custody and 12 months probation concurrent)

o Failure to comply with undertaking (6 months open custody and 12 months probation concurrent)

o Robbery – 2 counts (6 months open custody and 12 months probation concurrent)

[ 5 ] Mr. Land’s adult record is as follows:

• November 7, 2002 (age 18)

o Occupant of a motor vehicle taken without consent (10 days open custody, 15 months probation, and 3 days pre-sentence custody)

o Failure to comply with a disposition (1 day custody and 15 months probation concurrent)

• March 31, 2005 (age 20)

o Possession of a scheduled substance (suspended sentence, 1 year probation, and 50 hours community service work)

o Failure to attend court (suspended sentence, 1 year probation concurrent, and 15 days pre-sentence custody)

• April 4, 2004 (age 19)

o Failure to comply with recognizance (suspended sentence, 1 day probation, and 3 days pre-sentence custody)

• April 18, 2008 (age 23)

o Failure to comply with recognizance (suspended sentence, 1 day probation, and 9 days pre-sentence custody)

• July 17, 2008 (age 24)

o Failure to comply with recognizance (suspended sentence, 1 day probation, and 15 days pre-sentence custody)

o Failure to comply with recognizance (suspended sentence and 1 day probation concurrent)

• July 24, 2008 (age 24)

o Assault (suspended sentence, 12 months probation, 22 days pre-sentence custody, and discretionary prohibition order)

• October 5, 2010 (age 26)

o Failure to attend court (60 days custody)

o Assault (suspended sentence, 1 day probation, 30 days pre-sentence custody, and discretionary prohibition order)

The Parties’ Positions

[ 6 ] The Defence seeks an order to the effect that, if Mr. Land testifies: (1) the Crown will be prohibited from cross-examining Mr. Land in regard to the two assault and three robbery convictions when he was a youth, and the two assault convictions when he was an adult; and (2) the Crown will be prohibited from tendering evidence of such convictions through any other witness, including Dr. Julian Gojer, a forensic psychiatrist whom the Defence intends to call.

[ 7 ] The Crown takes the position that it should not be prevented from cross-examining Mr. Land in regard to all entries on his youth court and adult records because all entries are relevant to some degree in assessing his credibility, and their probative value outweighs any prejudicial effect caused by their admission into evidence.

Mr. St-Cyr’s Criminal Record

[ 8 ] At the commencement of the trial, the Crown advised the Court that it intended to call Mr. St-Cyr as its witness. On the Friday morning when Mr. St-Cyr was to testify, we learned that Mr. St-Cyr had, by mistake, not been brought to the courthouse from the institution where he is currently incarcerated. The trial was adjourned to Monday, at which time it was anticipated that Mr. St-Cyr would be testifying. On Sunday afternoon, Crown counsel advised Defence counsel and myself that they had decided not to call Mr. St-Cyr. The Defence has decided to call Mr. St-Cyr as its witness, and has asked for permission to cross-examine him. In separate reasons, that permission has been granted. Therefore, it can be assumed that Mr. St-Cyr’s criminal record will be put in evidence. There is no evidence before me as to Mr. St-Cyr’s record in youth court. Mr. St-Cyr has 41 convictions as an adult:

• 3 for assault
• 1 for assault with intent to resist arrest
• 1 for theft over $5,000
• 11 for possession of property obtained by crime over $5,000
• 5 for theft under $5,000
• 3 for possession of property obtained by crime under $5,000
• 1 for break and enter with intent
• 1 for possession of break-in instruments
• 1 for being unlawfully in a dwelling house
• 2 for mischief under $5,000
• 1 for dangerous operation of a motor vehicle
• 1 for attempt to commit an indictable offence
• 1 for flight while pursued by a peace officer
• 2 for failure to attend court
• 3 for failure to comply with a probation order
• 3 for failure to comply with a recognizance
• 1 for obstruction

Corbett

[ 9 ] Pursuant to s. 12(1) of the Canada Evidence Act , R.S.C. 1985, c. C-5, a witness in a criminal proceeding, including the accused if the accused chooses to testify, may be questioned as to whether he has been convicted of any offence.

[ 10 ] As a general principle, all evidence that is logically probative of a fact in issue is admissible, subject to the trial judge’s discretion to exclude evidence that may unduly prejudice the accused’s right to a fair trial, mislead or confuse the jury, take up too much time in relation to its probative value, or require exclusion on other legal or policy grounds ( Corbett per La Forest J., at 714). When an accused testifies, he puts his credibility in issue. It is accepted that a prior criminal record is one fact that bears upon the credibility of a witness. Dickson C.J.C. in Corbett , at 686, adopted the following rationale as expressed in State v. Duke , 123 A. 2d 745 (S.C.N.H., 1956), at 746 :

What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, “he takes his character with him.” Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey ... though the violations are not concerned solely with crimes involving “dishonesty and false statement.”

[ 11 ] Since Corbett , it has been accepted that, despite s. 12(1) of the Canada Evidence Act , a trial judge has the discretion to exclude evidence of prior convictions of the accused in circumstances where allowing cross-examination of the accused on all previous convictions would undermine the accused’s right to a fair trial. The concern about prejudice to the accused arising from the admission of previous convictions is three-fold. First, despite being instructed to the contrary, the jury may conclude that the accused is a person of “bad character” and, therefore, must be guilty of the crime charged. This amounts to convicting someone for their character, not their conduct. Second, the jury may be riled by the previous criminal conduct and be inclined to punish the accused for it. Finally, the jury may be sidetracked as a result of a multiplicity of convictions and lose track of the task at hand. If evidence about previous convictions of the accused were to have this effect on the jury, it would “operate unfairly and unjustly, and not merely unfortunately, to the accused ...” ( Corbett per La Forest J., at 724).

[ 12 ] The difficult task for the trial judge is to balance the competing goals of affording the accused a fair trial while, at the same time, ensuring that the jury is not presented with a misleading picture concerning the accused’s credibility. In Corbett , Dickson C.J.C., for the majority, concluded that the best way to balance these risks was to give the jury all of the information, but at the same time to give a clear direction to the jury as to the limited use they are to make of that information.

[ 13 ] Dickson C.J.C. recognized the usefulness of the catalogue of factors listed by La Forest J. (in dissent) to which reference may be had in determining when and how a trial judge’s discretion should be exercised in limiting cross-examination on an accused’s criminal record.

[ 14 ] That catalogue of factors includes: the nature of the previous conviction(s), the age of the previous conviction(s), the similarity of the previous conviction(s) to the current charge(s), and fairness to the trial process. In regard to fairness, both Dickson C.J.C. and La Forest J. highlighted that it would not be fair to prohibit cross-examination of the accused in regard to previous convictions if a deliberate attack had already been made by the Defence upon the credibility of a Crown witness, especially when the attack had been based on the prior criminal record of the Crown witness.

[ 15 ] In addition to cases specifically referred to in these Reasons, additional case law to which I was referred included: R. v. McMillan (1975), 223 C.C.C. (2d) 160 (Ont. C.A.); R. v. Yaeck , [1989] O.J. No. 3002 (H.C.) , aff’d R. v. Yaeck (1991), 1991 2732 (ON CA) , 6 O.R. (3d) 293; R. v. Saroya (1994), 1994 955 (ON CA), 36 C.R. (4 th ) 253 (Ont. C.A.); R. v. Hines , [2001] O.J. No. 1435 (S.C.) ; R. v. Sparkes , [2005] O.J. No. 1883 (C.A.) ; R. v. Tuck , 2007 ONCA 556 ; and R. v. Charbonneau , 2012 ONCA 314 . Case law in which the principles from Corbett are applied is of limited use considering the different factual contexts in the cases.

Analysis

Nature of the previous convictions

[ 16 ] The Defence seeks to avoid Mr. Land being cross-examined on previous convictions for violent offences. The presence of those convictions on his record could lead the jury to engage in unacceptable propensity reasoning and conclude that, since Mr. Land has been convicted of violent crimes in the past, he likely was the aggressor on the night in question. This is a serious concern, especially considering the limited relationship between crimes of violence and a person’s veracity or credibility. Crimes of deceit, fraud, cheating, and stealing reflect more directly on a person’s honesty and integrity. That is not to say that convictions for violent crimes in the context of a lengthy criminal record are of “trifling” probative value in assessing the accused’s credibility. As McFadyen J.A. stated in R. v. Charland (1996), 1996 7284 (AB CA) , 110 C.C.C. (3d) 300 (Alta C.A.) at 313, aff’d 1997 300 (SCC) , [1997] 3 S.C.R. 1006: “... a jury could reasonably conclude that the convictions reflect a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie.”

[ 17 ] In this case, Mr. Land has a lengthy criminal record for a man as young as he is, with convictions appearing every couple of years and with convictions for crimes of violence occurring both early and later on in the record.

[ 18 ] The prejudice that could be caused to Mr. Land, through the jury becoming aware of his previous convictions for crimes of violence, would be attenuated to some extent as a result of other circumstances in this case.

[ 19 ] First, Mr. Land pled guilty to manslaughter at the commencement of the trial. In doing so, he acknowledged that he caused Mr. Doyon’s death. This is much more powerful evidence than earlier convictions for assault or robbery. The prejudicial impact of those earlier convictions pales in comparison to the admission of guilt to manslaughter.

[ 20 ] Second, the jury has been exposed to extensive, and graphic, forensic and blood spatter evidence which leaves no doubt as to the violence meted out to Mr. Doyon on the night he died. Dr. Christopher Milroy, the forensic pathologist, documented 83 injuries and 4 stab wounds to Mr. Doyon’s body, likely inflicted by a hammer, sword, and crutches.

[ 21 ] Third, the jury has already heard evidence from J.G-M. that she witnessed Mr. Land threatening Mr. Doyon with a knife and Mr. Doyon dealt with the threat by pushing Mr. Land up against the wall.

[ 22 ] Fourth, Mr. Land in his statement to Detective McIntosh of May 7, 2009 stated that, when he was babysitting children when he was younger, if family members went into the children’s room to abuse them sexually, he would fight them and blood could flow. He also stated that, when he got to be 15 or 16, he was strong enough to “beat up” his father if his father tried to abuse him or other family members. That evidence is already before the jury.

[ 23 ] All of that being said, I consider the three convictions for robbery to be capable of causing significant moral prejudice. “Robbery” can conjure up for many people the image of one or more people in masks, carrying weapons, and robbing banks or convenience stores – thereby putting many innocent people at risk. The average lay person might not realize that “robbery” can encompass a wide range of activities from minor events to those resulting in a fatality.

Timing of the previous convictions

[ 24 ] Two of the assault convictions were entered in 1999, when Mr. Land was 15 years old. The three robbery convictions were entered in 2000, when Mr. Land was 16 years old. These five convictions are dated. For that reason, and also because they relate to a period when Mr. Land was a troubled teenager, not when he was a more mature adult, they carry minimal probative value to the current assessment of Mr. Land’s credibility.

[ 25 ] The third assault conviction was entered on July 24, 2008, when Mr. Land was 24 years old. In that it is not that far in the past, it carries more probative value to a credibility assessment.

[ 26 ] The fourth assault conviction was entered on October 5, 2010, after Mr. Land had been incarcerated for approximately one and a half years. No details of the circumstances of this offence were provided. The fact that this was the last conviction entered on Mr. Land’s record may increase its probative value but this is tempered by the fact that, at the time of conviction, Mr. Land was facing either a life sentence for second degree murder or a significant sentence for manslaughter. A conviction for assault was the least of his worries. Consequently, more weight than is deserved could easily be assigned to this conviction.

Similarity of the previous convictions to the current charge

[ 27 ] The previous convictions, although crimes of violence, do not come close to the charge Mr. Land is now facing. The toughest sentence Mr. Land received for any of the earlier convictions for assault or robbery was six months open custody and a period of probation.

[ 28 ] La Forest J. in Corbett , at 740-41, adopted the following principle from Gordon v. United States , 383 F.2d 936 (1967), at 940:

As a general guide, those convictions which are for the same crime should be admitted sparingly, one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.

[ 29 ] I have some concern that the number of crimes of violence on Mr. Land’s record, considering his youth, could overwhelm the jury and act to distract them from a more focused and nuanced assessment of his credibility.

Fairness to the prosecution

[ 30 ] In circumstances where the accused challenges the credibility of a Crown witness, it is only fair that the jury have the necessary information to determine whether the accused is any more worthy of belief.

[ 31 ] The Crown has closed its case. At no time did Defence counsel challenge the credibility of any Crown witness. The reliability of the evidence of several witnesses was challenged, based on their ability to see, hear, or remember certain events, or, in regard to professional witnesses, based on their methodology or similar factors. However, their honesty and integrity were not challenged.

[ 32 ] That being said, special considerations regarding misleading the jury would arise in this case if Mr. Land’s criminal record were edited to the extent requested by the Defence.

[ 33 ] When Mr. Doyon was killed, there were only three individuals present: Mr. Doyon, Mr. Land, and Mr. St-Cyr. Obviously, Mr. Doyon is not here to tell his story. Mr. St-Cyr will be called as a Defence witness only because the Crown decided at the last minute not to call him. In a sister ruling, I am giving Defence counsel the right to cross-examine Mr. St-Cyr. Obviously, the Crown will also have this right. Depending on what Mr. St-Cyr says when testifying, either the Crown or the Defence is likely to put all of Mr. St-Cyr’s criminal record before the jury. Having Mr. St-Cyr’s complete criminal record (41 convictions) stand beside an overly sanitized version of Mr. Land’s criminal record would render the trial less, not more, fair. The jury would be comparing the credibility of two men whose criminal records, as disclosed, would have significantly different levels of completeness.

[ 34 ] Mr. St-Cyr’s record is lengthier compared to that of Mr. Land – 41 convictions to 22 convictions respectively. It includes significantly more convictions for offences that relate directly to dishonesty than convictions for offences of violence. In terms of moral prejudice, there are fewer crimes of violence on Mr. St-Cyr’s record than on Mr. Land’s record. Mr. Land is at greater risk of having the jury use improper propensity reasoning. More specifically, Mr. Land is at greater risk that such improper reasoning might lead the jury to conclude that, since he has more convictions for crimes of violence, he must have been the one to wield the sword on the night in question.

Probative value vs. prejudicial effect

[ 35 ] Of utmost importance is providing Mr. Land with a fair trial while, at the same time, ensuring that the jury is not misled in their task of determining the truth. Mr. Land is the only person at jeopardy at this trial. Although until last year, Mr. St-Cyr was a co-accused, he is no longer in that position. His jeopardy for his actions on the night of May 4, 2009 has been determined. Therefore, although it is important that the jury not use propensity reasoning in regard to either Mr. St-Cyr or Mr. Land, it is Mr. Land who has the most to lose if the jury falls into such reasoning.

[ 36 ] Mr. Land’s record covers a period of 11 years. In those years where convictions occur, there are convictions for more than one offence. Therefore, deleting an offence would not result in a gap in criminal convictions during that period.

[ 37 ] In my view, how Mr. Land conducted himself when he was 15 and 16 years old has minimal probative value in assessing his credibility at the present time. Crimes of violence committed at that time, given their relatively low relevance to credibility in the scheme of offences, carry very little probative value now. The theft component of the robbery charges carries somewhat more probative value, being a crime of dishonesty.

[ 38 ] Deleting all crimes of violence from Mr. Land’s record would mislead the jury as to the nature, extent, and seriousness of his criminal record. It would remove 7 of the 22 convictions. It would leave Mr. Land with convictions mostly for failure to comply with a recognizance, undertaking, or court order. It would make it appear that he had never engaged in assaultive behaviour while Mr. St-Cyr had been convicted of such behaviour on four occasions.

[ 39 ] The balancing act required here is difficult. I conclude that justice can best be served if (1) Mr. Land’s two assault convictions when he was a minor are excluded, (2) Mr. Land’s three robbery convictions when he was a minor are edited to be theft convictions, and (3) Mr. Land’s assault conviction in 2010 is excluded.

[ 40 ] Mr. Land’s two assault convictions and three robbery convictions when a minor are excluded due to their remoteness, the minimal probative value they carry to the issue of current credibility, the potential they create for moral prejudice, and the fact that other charges included in this timeframe will accurately portray Mr. Land’s disrespect for the law at that time. Editing the robbery convictions to theft convictions helps with that goal. Mr. Land’s 2010 assault conviction is excluded because it has the potential of being highly prejudicial while at the same time it offers little in the way of probative value on the issue of Mr. Land’s credibility. Leaving the 2008 assault conviction available as a subject for cross-examination under s. 12(1) of the Canada Evidence Act , should Mr. Land testify, ensures that the jury is aware that Mr. Land’s criminal record includes violent crime – just as Mr. St-Cyr’s does. Considering the jeopardy Mr. Land faces should propensity reasoning be used against him, a jeopardy not faced by Mr. St-Cyr should propensity reasoning be used in assessing his evidence, it is a reasonable balance that the criminal records of both Mr. Land and Mr. St-Cyr include one assault conviction in the year or so prior to May 4, 2009 and that Mr. St-Cyr’s criminal record also include three other assaults from years earlier even though Mr. Land’s assaults and the violent portion of the robbery convictions from years earlier will be edited. As mentioned above, the jury has already heard some evidence regarding violent behaviour on Mr. Land’s part on occasions not captured by the convictions. This, as well, helps to balance the picture being presented to the jury of the respective antecedents of Mr. Land and Mr. St-Cyr.

Disposition

[ 41 ] For these reasons, the Corbett application was allowed in part. The Crown will be prohibited from cross-examining Mr. Land in regard to the two assault convictions when he was a youth and the 2010 assault conviction when he was an adult. The Crown will be prohibited from tendering evidence of such convictions through any other witness, including Dr. Gojer. The three robbery convictions when Mr. Land was a youth will be edited to be theft convictions.

Aitken J.

Released: October 30, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN: HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused

MID-trial ruling #1 regarding cORBETT
Aitken J.

Released: October 30, 2012