CITATION: R. v. Derby, 2013 ONSC 2774

COURT FILE NO.: CRIM(P)2142/12

DATE: 20130524

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Cornelius, for the Respondent

Respondent

• and -

JEROME DERBY

J. Myers and P. Zaduk, for the Applicant

Applicant

HEARD: May 9, 2013

RULING

CORBETT APPLICATION

Fragomeni J.

1The applicant, Jerome Derby has the following criminal record:

Sentence

May 6, 2009 Robbery - 1 day and (15 months pre-Sentence custody) and 18 months probation, s. 109 order

May 4, 2010 - Possession of Property obtained by Crime (x2); Break and Enter; Flight from Police;

Breach of Probation

2The defence submits that the May 6, 2009 Robbery, should be referred to as a theft. The defence also seeks to have excluded from the jury the conviction for flight from police.

Re: Robbery Conviction

3I agree with the defence position that this conviction should be referred to as a theft. Credibility is properly challenged by convictions for fraud, deceit and theft as such convictions reflect a person’s honesty and integrity.

4In R. v. Charland 1996 7284 (AB CA), 110 C.C.C. (3d) 300 (Alberta Court of Appeal) the Court stated at p. 313 that “generally, previous convictions for violent offences such as sexual assault do not directly reflect on honesty and truthfulness and, depending on the circumstances of the case, have limited probative value in assessing credibility.

5In the case at bar admission of the robbery conviction raises additional concerns. The three main Crown witnesses, Sara Munn, Dwayne Blake and Ryan Fenton were not attacked in cross-examination on the basis of their criminal records. The only one of the three, Ryan Fenton, was asked about his criminal record for possession of drugs. Although he acknowledged back in 2004/2005 being a drug trafficker his only conviction was for simple possession. The thrust of the cross-examinations of Munn, Blake and Fenton related to the truthfulness and reliability of their account of the incident on November 7, 2010. The extent to which the defence has attacked the credibility of Crown witnesses is a factor I can and do take into account. As set out in Corbett, where an accused highlights the criminal records of Crown witnesses, a serious imbalance would occur if the jury was not made aware of the accused’s criminal record, since the jury would be left with an incorrect impression that the Crown’s witnesses were all hardened criminals while the accused had an unblemished past.

6As I indicated in the case at bar, the defence cross-examination of the Crown witnesses was directed at the fatal altercation between Mr. Derby and Mr. Grant.

7In R. v. Farrell 2011 ONCA 572, released September 2, 2011, the Court noted the following at para. 4:

In our view, the trial judge erred with respect to his ruling on the Corbett

application and in his charge to the jury. As to the Corbett application, while there was

some attack on Mr. Philips’ credibility, because of his bad character, that aspect of the

cross-examination was relatively insignificant. The overwhelming amount of cross-examination was directed to the particular incident and the victim’s relationship with the

women involved in the incident. There was no cross-examination of the victim on any

criminal record. This case falls within this court’s decision in R. v. B. (W.), 145 C.C.C.

(3d) 498 at paras. 45 – 49. The attack on the victim’s evidence may incidentally have

impacted on his character but the cross-examination was primarily directed to the

truthfulness of his account of the incident.

8There is also another concern relating to the robbery conviction. The reason Mr. Grant attended at the hotel room where Sara Munn was working was because she thought Mr. Derby, who had called for her services and attended at her hotel room, was the robber she had heard was robbing other escorts at gunpoint. Sara Munn had heard that a young black male had robbed other escorts and when she looked through the peephole of her hotel room she thought it was that same person. She called Mr. Grant, who was also aware that one of his girls had been robbed, so he attended at the hotel room to see who it was.

9The concern raised on these facts is that the jury would engage in an impermissible chain of reasoning and engage in propensity reasoning that Mr. Derby is that robber so he was at Sara Munn’s door with a gun to rob her. The jury could reason that since he has been convicted of robbery in the past he must be the robber that was robbing these other sex trade workers at gunpoint and therefore, he was at Sara Munn’s hotel with a gun to rob her.

10In my view this chain of reasoning is impermissible and if the robbery conviction is before the jury there is a real and serious risk, despite any caution or instruction given by the judge, that it will be misused.

11In R. v. Talbot, 2007 ONCA 81, [2007] O.J. No. 427 (Ont. C.A.) the court set out the following at paras. 28 to 33:

The trial judge acceded to most of the submissions made on behalf of the respondent. She held that the Crown could not cross-examine the respondent on the six assault related convictions and that cross-examination on the two robbery convictions should refer to the convictions as theft convictions. As a result of the trial judge's ruling, Crown counsel was permitted to cross-examine the respondent on nineteen prior convictions extending over the sixteen years prior to this homicide.

The acquittal demonstrates that the jury found that the respondent's evidence was sufficiently credible to at least leave the jury with a reasonable doubt on the self defence issue. Crown counsel on appeal argues that the trial judge erred in law in refusing to allow the Crown to cross-examine the respondent, for credibility purposes, on his entire prior criminal record. Crown counsel submits that had proper cross-examination been allowed, the result may well have been different.

Crown counsel launched a multi-faceted attack on the trial judge's ruling identifying no less than seven separate errors in principle. Counsel also alerted the court to what he described as "jurisprudential chaos" in the trial courts. In counsel's submission, the trial courts have strayed from the principles enunciated in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, which recognized a limited discretion to exclude cross-examination on a criminal record. He argued that the trial courts are going far beyond anything contemplated by the principles set down in R. v. Corbett and are routinely excluding or limiting cross-examination of an accused on his or her criminal record.

The court found no merit to these submissions and did not call on counsel for the respondent. I will, however, address the Crown's arguments.

The trial judge began her reasons with a reference to the leading case of R. v. Corbett, supra. The trial judge recognized that an accused's criminal record, including convictions for crimes of violence, could have a direct bearing on the credibility of the accused as a witness. She also acknowledged that cross-examination on the record should be limited or denied only where the prejudicial potential of that cross-examination exceeded the potential probative value of the record.

After referring to the factors identified in R. v. Corbett, supra, as relevant to the assessment of probative value versus prejudicial effect, the trial judge considered each of those factors as they arose in this case. She concluded that the risk of prejudice was high. The outcome of this trial turned on whether the Crown could prove that the respondent instigated the confrontation outside of the restaurant that resulted in Mr. Shelton's death. If the respondent was the aggressor, he was guilty of at least manslaughter. The respondent claimed that Mr. Shelton and his friends were the instigators and that he acted in self defence. The trial judge was concerned that if the jury heard that the respondent had eight prior convictions for assault related offences over several years, that it would conclude, despite instructions to the contrary, that he had a propensity to act violently and infer from that propensity that he had instigated this confrontation. That line of reasoning, while perhaps logically compelling, is impermissible under the rules of evidence governing criminal proceedings. A verdict that flows from such reasoning is a miscarriage of justice.

12In R. v. Crowley, [2001] O.J. No. 613, Archibald J. stated at para. 6:

A great many of Mr. Crowley's convictions relate to crimes of dishonesty which may reflect adversely on his honesty and integrity. Such offences as break, enter and theft, possession of stolen property, fail to comply, theft over and obstruct police officer do not give this court any large concern. An appropriate direction to the jury concerning how they may use the accused's criminal record should offset any possibility that the jury may attempt to use Mr. Crowley's criminal record as evidence of bad character. The court, however, gives pause concerning the crimes of violence which are on Mr. Crowley's record including uttering threats, assault and, most particularly, robbery and use of a firearm during the commission of an indictable offence. Although the robbery convictions by themselves denote crimes of dishonesty, they are similar to the charges before the court. This court is mindful of Mr. Justice LaForest's admonition concerning the reality that the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission (Corbett, ibid, at p. 436).

13In R. v. Singh 2013 ONSC 173, Benotto J. stated at para. 9:

The probative value in this regard is grossly outweighed by the potential prejudice. If the jury were to hear that there were two prior convictions for assault, propensity reasoning would be inevitable, despite the safeguards of a limiting instruction. Convictions for violence are too similar to the crime charged. The assault charge will be edited out.

14In all of the circumstances and the factual matrix that gave rise to the fatal altercation in the hotel room I am satisfied that the robbery conviction be characterized as a theft.

Re: Flight from Police

15The circumstances surrounding this conviction relates to a flight from police while driving his motor vehicle. This conviction is not a crime of dishonesty and in my view has less bearing on Mr. Derby’s credibility.

16In addition, it’s prejudicial effect outweighs any probative value, if any, that could attach to it. The prejudice is even more pronounced in light of my ruling that the crown can lead after the fact conduct relating to Mr. Derby’s attempt to flee the police upon his arrest. I agree with the defence that the jury may attach undue weight to that conviction in those circumstances. As such this conviction will be excised from the record.

Fragomeni J.