ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-09-26
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 25, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
DEFENCE APPLICATION TO EDIT THE CRIMINAL RECORD OF THE ACCUSED
Conlan J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] At the close of the Crown’s case, the Defence Corbett Application was argued.
[3] At the conclusion of oral argument by counsel, I indicated what prior convictions on the accused’s criminal record shall be edited, with written reasons to follow.
[4] These are those written reasons.
[5] I am grateful to both counsel for their helpful oral submissions and to the Crown for the jurisprudence filed.
The Positions of the Parties
The Defence
[6] Of Mr. W.’s 35 prior criminal convictions commencing as a youth in 1988 and ending most recently in 2006, the Defence submits that all youth convictions (five of them between 1988 and 1989), all assault-related convictions (ten of them throughout the criminal record), all narcotics convictions (five of them between 1996 and 2004) and a 1994 conviction for dangerous operation of a motor vehicle be excluded from evidence at Trial.
[7] The Defence takes no firm position on convictions for fail to stop at the scene of an accident and robbery.
[8] Otherwise, the criminal convictions are admissible, says the Defence.
The Crown
[9] The Prosecution submits that none of the criminal convictions ought to be excluded from the evidence at Trial.
General Principles
[10] The Trial Judge has discretion to exclude or edit prejudicial evidence of a prior conviction of the accused.
[11] The question is whether the probative value of the evidence of the prior conviction exceeds the risk of prejudice through improper jury use of the previous conviction to find guilt based on bad character.
[12] The burden of proof is on the Applicant, the Defence. The standard of proof is on a balance of probabilities.
[13] Factors to consider are the effectiveness of a limiting instruction to the jury, the number of prior convictions, the nature of the prior conviction and in particular whether it is relevant to credibility or honesty, the timing of the prior conviction, how similar the prior conviction is to the offence charged (the more similar, the greater the chance for exclusion), whether the defence has attacked the integrity of the police and the nature of the defence cross-examination of the Crown witnesses.
Analysis
[14] In the case before me, there has been no attack by the Defence, before the Jury, on the police investigation, nor has there been any attack on the general character of the complainants.
[15] I reject the Defence argument that the youth convictions are too dated. They show a pattern of dishonest behaviour on the part of Mr. W. over just two years before his first adult conviction.
[16] I reject the argument by the Defence that all of the assault-related convictions are too similar to the offences facing Mr. W.. Other than the convictions for simple or common assault, the other convictions for assault with a weapon and assault causing bodily harm are significantly different than the sexual charges being tried here.
[17] I accept the argument by the Defence that the 1994 conviction for dangerous driving ought to be excluded as it has minimal probative value in that it has very little if anything to do with honesty and credibility and, thus, its admission in to evidence would be unduly prejudicial to Mr. W..
[18] The fail to stop at the scene of an accident and robbery convictions are crimes of dishonesty and are properly admissible.
[19] I reject the argument by the Defence that all of the narcotics convictions should be excluded. Other than the convictions for simple possession, which have minimal probative value in that they have very little if anything to do with honesty and credibility, the other more serious drug convictions, such as for trafficking, are relevant to credibility and ought therefore to be admitted.
Conclusion
[20] For the above reasons, the Application by the Defence is allowed in part.
[21] These nine criminal convictions of the accused shall be excluded from the evidence at Trial. Otherwise, the criminal record of Mr. W. is admissible, including evidence of the 26 other criminal convictions.
1994 – dangerous operation of a motor vehicle
1995 – assault
1995 – assault
1996 – assault
1996 – possession of a narcotic
1996 – possession of a narcotic
1997 – assault
1999 – assault (two counts)
Conlan J.
Released: September 26, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
REASONS FOR DECISION
Conlan J.
Released: September 26, 2013