ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 0105/12
DATE: 20121026

B E T W E E N:

HER MAJESTY THE QUEEN

Rochelle Liberman, for the Crown

Respondent

• and -

ABDALLA ABDULKADIR MUSSE

Marietta Hristovski, for the Defendant/Applicant

Applicant

HEARD: October 25, 2012, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Corbett Application

1Today, at the conclusion of the Crown’s case, defence counsel advised that the accused would be testifying, but she brought an application for an order granting an extension of time and for an order pursuant to the principles set out in R. v. Corbett (1988), 1988 80 (SCC) , 41 C.C.C. (3d) 385 (S.C.C.). In that application, the defence requests that the applicant’s criminal record be excluded at trial and that the Crown be precluded from cross-examining the applicant on that criminal record. In the alternative, the applicant asks the court to edit the record of the accused sufficiently to preclude its use in propensity-based reasoning.

2The applicant claims that fairness requires that the issues raised on the application be considered notwithstanding late notice, a point with which I have no dispute, but also claims that the prejudice to the applicant resulting from the jury being made aware of the entries in the accused’s criminal record far outweighs the probative value of that information with respect to his credibility, such credibility being a central issue in the present proceedings.

3The applicant was charged with sexual assault on S.M. contrary to the Criminal Code of Canada on August 20, 2011. The assault is alleged to have taken place on April 16, 2011. It is since that time that the accused has acquired a criminal record. He was charged on January 2, 2012 with three offences. These included assaulting a peace officer contrary to s. 270(1) of the Code , common mischief under s. 430(4), and a failure to comply with a recognizance contrary to section 145(3). Mr. Musse was tried on these matters on April 26, 2012. It appears the proceedings were concluded that day with convictions on the three counts. The accused was sentenced to 21 days of pretrial custody served plus one day, plus one year of probation on all three counts. It is not evident from the TPS case tracking document, but it seems that those sentences were intended to be served concurrently.

4Defence counsel acknowledges that these were offences of moral turpitude insofar as they gave rise to charges under the Criminal Code . Nevertheless, it is also plain on the face of the case tracking document which is the only record of his offences that was before the court, that the penalties imposed were not excessively serious, having regard to the fact that the offence of assaulting a police officer is punishable on indictment by a maximum term of imprisonment of five years, and that the conviction on the mischief charge is punishable by up to two years’ imprisonment with the breach of recognizance offence being punishable also by up to two years of imprisonment.

5The Crown Attorney has no other information of what was behind these charges. The facts that gave rise to the charges are unknown. Importantly, the charges appear to have arisen nine months after the events that are the subject matter of this trial and the sexual assault charges that the accused faces in this case. While I do not know exactly what gave rise to these charges being laid, it is easily conceivable that they result from a breach of the accused's recognizance on this matter, and possibly some minor scuffle with the police officer and perhaps some effort to deceive evidenced by the charge of common mischief. The important point is that the subject matter of the charges cannot be considered to have been excessively serious or egregious if Mr. Musse was only sentenced to a total penalty of 21 days of pretrial custody plus one day, plus one year of probation. Plainly, those are very lenient sentences for arguably low-level infractions.

6It is against this background that I must consider whether or not to exclude the defendant's criminal record and preclude the Crown Attorney from cross-examining on that record. The starting point is section 12 of the Canada Evidence Act , which stipulates that a witness may be questioned as to whether they have been convicted of any offence other than a designated offence, but including offences where the conviction was entered after a trial on indictment. The record may also be introduced if the witness either denies the fact that it exists, or refuses to answer questions asked by the Crown relative to the existence of the criminal record. However the decision of the Supreme Court in Corbett establishes that I have discretion to exclude prejudicial evidence of previous convictions in appropriate cases where a mere mechanical application of section 12 of the Canada Evidence Act would undermine the right to a fair trial.

7Corbett was a different kind of case from this altogether. In Corbett , a murder case, the defence sought to exclude Corbett’s criminal record, which included prior convictions for murder. On the other hand, the criminal records of other individuals who were before the court and who testified on behalf of the Crown were fully exposed.

8So it is in that kind of context that the Supreme Court’s finding must be considered. The Supreme Court concluded that although there was perhaps a risk that the jury would use the evidence of prior convictions for an improper purpose, concealing the prior record in that case would deprive the jury of information that was relevant to the credibility of the accused and create a more serious risk that the jury could be presented with a misleading picture. While it was recognized as generally reasonable to cross-examine an accused person on his or her criminal record, the court accepted that evidence of prior convictions might be excluded in the discretion of the trial judge in circumstances where the prejudicial effect of admissibility would outweigh the probative value of that evidence. The court did not provide an exhaustive list of factors to be taken into consideration in the determination of whether this discretion should be exercised but clearly the nature of the conviction is a factor that is of relevance.

9The Court of Appeal of this province has held that a trial judge hearing a Corbett application is obliged “…to weigh and balance the risks for and against exclusion, bearing in mind the evidentiary value of previous convictions admitted pursuant to section 12 and the fair trial of the accused”: see R. v. Brand , 1995 1540 (ON CA) , [1995] O.J. No. 1342 (C.A.), at para. 8 .

10The Crown argues in this case that there is not much prejudice to Mr. Musse that would be caused by the introduction of his criminal record, and that the introduction of that record and permitting the jury to be aware of his more recent convictions on these offences cannot reasonably be regarded as causing any prejudice, in contrast to the alleged probative value of that evidence relative to his credibility as a witness. The Crown continues that to the extent that any problem might be considered to arise that the introduction of this evidence could invite propensity reasoning on the part of the jury, that such concern could be dispelled with the use of an appropriate instruction from me at the end of the case.

11I accept the proposition that thorough instructions can frequently serve to address any potential concerns that might arise otherwise from the introduction of evidence that is properly admissible. The problem I have with the criminal record in this case is that (i) it post-dates these offences, (ii) contains no crime of dishonesty element in the nature of any of the charges, that could realistically and fairly call into question the credibility of the accused, and (iii) the charge in this case is sexual assault. In a case such as this where the credibility of the applicant and the credibility of the complainant are the central issues that will affect the jury’s determination of whether the accused is guilty or not guilty of the sexual assault offence with which he is charged.

12The cases put forward by the defence that have considered Corbett applications always have to be looked at for their specific facts. As I observed to counsel during the hearing, it was not surprising to me that our Court of Appeal prevented the accused’s criminal record from being introduced in [R. v. Brand] , given that the charges the accused faced in that case were of trafficking in cocaine, and the prior offences set out in the criminal record were also convictions for the same offence. The trial judge permitted the criminal record to be introduced including those offences, notwithstanding that no analysis was done or argument made that it was a case where similar fact evidence ought to be admitted. So effectively, the trial judge’s decision to permit the entire record of the accused to be introduced when he testified, was tantamount to a ruling permitting similar fact evidence to be admitted on his trial, insofar as his record displayed convictions for prior offences of trafficking in cocaine, when the analysis mandated by R. v. Handy had not taken place.

13I agree with defence counsel that of considerably greater importance is the decision of the Court of Appeal in R. v. W.B. , 2000 5750 (ON CA) , [2000] O.J. No. 2186 (C.A.), because that case, like this case, involved charges of sexual assault, but in circumstances like in this case, where the defence focused her attack principally on the reliability, and also the credibility, of the complainant's evidence, but without calling her character into question in any way. To my eye, defence counsel was very careful in her cross examination of the complainant to restrict her attacks to the internal inconsistencies of her evidence relative to her initial statement to the police only a short time after the assault allegedly occurred, and as compared to her testimony at the preliminary inquiry, as further compared to her evidence as presented at this trial.

14As a result, the kind of factual imbalance that Chief Justice Dickson had in mind in Corbett was simply not present. In W. R. , the Crown had sought to justify cross-examination of the accused on his prior record on the basis of a serious potential for imbalance between the positions of Crown and defence if the Crown was not permitted to cross examine the appellant on his record. I note that Crown counsel in this case does not advance her argument that strenuously, but instead relies on the expected ability of the jury to not be cajoled by such a record into propensity reasoning relative to the accused, and to relegate this evidence to its proper place and value in considering the evidence presented on this trial as a whole.

15However in W. R. , the Court of Appeal observed that the facts in Corbett were far removed from the circumstances of the sexual assault case that they were facing, and I would add, are equally far removed from the facts and circumstances of the sexual assault case that confronts the court here. In Corbett , Chief Justice Dickson reached the conclusion he did because the exclusion of Corbett’s prior criminal record in that case would not have created a serious evidentiary imbalance, since they “would have been left with the entirely mistaken impression that while the Crown witnesses were hardened criminals, Corbett had an unblemished record”.

16Here, there has been no attack made on the character of the complainant. The complainant told her story in the course of giving her evidence in chief, and she was cross examined thoroughly and extensively on inconsistencies that existed in her testimony before this court as compared with the Preliminary Inquiry, and as compared to the statement she gave to the police within hours after the assault allegedly took place. In such a circumstance, it seems to me that the admission of the accused’s limited criminal record of three offences that post-dated this alleged offense and that are of minor significance when compared with this charge, can serve no other purpose but to suggest that he is not credible merely because he committed those offences earlier this year. They are offences that may involve elements of moral turpitude, but they do not have on their face involve dishonesty, the factor that would more properly go to an impeachment of credibility. In W.R. , Justice Rosenberg had the following to say in part at paragraph 46:

There is a distinction between an attack on the character of Crown witnesses initiated by the defence and attempts by the defense to meet the prosecution's evidence that incidentally impact on character. The attack on the Crown witnesses in the appellant’s case was directed at the lack of credit of their accounts of the events, not their character and certainly not their character for criminal conduct.

17At paragraph 47, Justice Rosenberg observed that the suggestion made by the defence in that case said the complainant's evidence of the abuse was untrue was hardly an attack on her evidence because of bad character. Clearly the accused was entitled to deny his guilt and he was entitled as well to advance evidence to repudiate the allegations that were made by the complainant. Questioning the complainant's account and suggesting that the account was not true did not create the potential for the kind of imbalance that was discussed by Chief Justice Dickson in Corbett .

18In this case, I simply believe there is no value of any appreciable nature to be gained from an evidentiary perspective by permitting the accused to be cross examined on his criminal record for charges of a relatively minor nature that have their origins after the alleged time where the sexual assault which is alleged to have occurred in this case took place. The Crown was not able to put any evidence before the court of what the facts were that lay behind those charges. I can only draw an inferential conclusion that they cannot have been exceedingly serious matters having regard to the dispositions that were imposed. Consequently, I reach the conclusion that the only possible purpose to be served by the introduction of the accused’s criminal record here is rote compliance with s. 12 of the Canada Evidence Act insofar as that record is admittedly admissible, but in circumstances where it could create an imbalance that is inappropriate in the circumstances of this case by calling into question the character of the accused based on relatively insignificant matters, when the character of the complainant has not been called into question, and where the real focus of this case ought to be on the credibility and reliability of the competing evidence of the two principal actors, the complainant and the accused, played out within the analytical framework that is mandated by R. v. W.D .

19The application of defence counsel is granted to exclude the accused’s criminal record as reflected in the TPS case-tracking document, and to preclude the Crown from examining the accused on that record.

Michael G. Quigley J.