CITATION: R. v. Grizzle, 2013 ONSC 6521

COURT FILE NO.: CR-13-50000518-0000

DATE: 20130816

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

OMAR GRIZZLE

Applicant

– and –

HER MAJESTY THE QUEEN

Respondent

D. Bayliss for Omar Grizzle

R. Krueger for the Crown

HEARD: August 8, 2013

Thorburn J.

RULING (Corbett Application)

I. Grizzle’s Record and Position in Support of his Request to Exclude Portions of It

[1] A search warrant was executed at 2005 Eglinton Avenue West, Apartment 309 on May 4, 2010. The Applicant, Omar Grizzle was found sleeping on the couch in the living room. Police found a loaded prohibited firearm with ammunition, in a suitcase found in the children’s bedroom of the apartment.

[2] Grizzle faces charges of possession of a loaded prohibited firearm and magazine capable of holding more than ten rounds of ammunition. He seeks to excise certain criminal convictions from evidence to go before the jury in this case.

[3] Grizzle’s criminal record consists of the following:

i. 2005-01-05: Fail to comply with recognizance;

ii. 2005-06-03: Assault;
Theft under $5000;

iii. 2005-09-06: Possession of a prohibited or restricted weapon knowing it is unauthorized;
Fail to comply with recognizance;

iv. 2006-01-10: Fail to comply with recognizance (x2);

v. 2007-01-04: Assault;

vi. 2007-03-22: Attempt murder (firearm);
Possession of a firearm knowing it was unauthorized;
Fail to comply with a disposition; and

vii. 2012-09-12: Robbery and use of an imitation firearm.

[4] Grizzle seeks to exclude his conviction for attempted murder, all of his weapons related offences, and all assault convictions. He also seeks to reduce the robbery conviction to theft. Grizzle does not seek to exclude from evidence at trial, his convictions for failure to comply with the terms of his recognizance and theft.

[5] Grizzle’s position is that his convictions for attempted murder, assault, possession and use of weapons offences and robbery have little or no probative value as they are not crimes of dishonesty. Moreover, these convictions are highly prejudicial as they are very similar to the offences he is charged with in this proceeding. He argues that there is therefore a danger that if these convictions are brought to the attention of the jury, the jury may conclude that because he was convicted of these types of offences in the past, Grizzle is the kind of person who was in possession of a firearm in this case.

[6] Grizzle suggests the jury would not be mislead as they will know Grizzle is not a person with an unblemished past: they will know he breached the terms of his bail many times and was convicted of theft twice. The jury was also apprised (through a question posed by Grizzle’s counsel) that Grizzle was a target of this search warrant and police had a warrant for his arrest.

[7] Grizzle’s counsel says his suggestion that Sergeant Young planted Grizzle’s wallet into the suitcase where the loaded firearm was found does not represent an attack on Sergeant Young’s character. He suggests this was an attack on his behaviour in the execution of this search warrant, not his character generally. As such, it should not result in the jury having a more fulsome look at Grizzle’s criminal record.

II. Procedure to be Followed

[8] 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.

[9] In R. v. Underwood, 1998 839 (SCC), [1998] 1 S.C.R. 77, Lamer C.J.C. held that this Corbett Application to determine how much of a person’s criminal record should be put before the jury, should be argued after the close of the Crown’s case and before the Defence opens their 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.

[10] Upon receipt of the ruling, the accused will understand the consequences of testifying.

III. The Law

General Principles

[11] 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.)

[12] 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.)

[13] In so doing the court should be mindful that,

[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 and R. v. Hines (2001), 49 W.C.B. (2d) 486 (Sup. Ct.).)

[14] 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.)

[15] 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, supra, 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.

The Factors to be Considered

[16] 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:

i. the nature of the previous convictions;

ii. the remoteness or nearness of the previous convictions to the present charge (recent charges may have more probative value but greater prejudicial effect);

iii. 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

iv. 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.

(i) The Nature of Previous Convictions

[17] “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.)

[18] 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. (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.)).

(ii) Remoteness

[19] At p. 742 of Corbett, La Forest J. held that:

The remoteness or nearness of the previous conviction is also, as the court in Gordon, supra, said, “a factor of no small importance” (p. 940).

[20] It is the time from the criminal conduct and not the date of the actual conviction that is of most importance. Remoteness is significant as an accused who has commendably rehabilitated himself should not be plagued with an old offence, committed when he was no doubt a different person. (R. v. Mulligan, 1997 995 (ON CA), [1997] 34 O.R. (3d) 212 (Ont. C.A.) referring with approval to an extract in the trial judge’s decision.)

(iii) Similarity of the Previous Convictions to these Charges

[21] 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.)

[22] 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. The court commented that the narcotics convictions had virtually 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.

[23] In R. v. Saroya, 1994 955 (ON CA), [1994] O.J. No. 2920 (C.A.) the accused’s prior record consisted of one prior conviction for attempted murder four years before the trial in that case. The court held that,

A conviction for attempted murder cannot be dismissed as having little probative value on the credibility of a witness. Although it is not a so-called offence of dishonesty, which may be probative of deception, attempted murder is such a serious offence that, in itself, it may be taken to indicate that the prospect of a conviction for perjury is unlikely to keep the witness in line. More significantly, it would be open to a jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life.

We are of the opinion that the deletion of the appellant’s record would leave the jury with incomplete and therefore incorrect information about his credibility as a witness. To deprive the jury of that information in the present case, would hinder the jury’s ability to correctly appreciate the facts. On balance, we think that the probative value of the appellant’s criminal record on the question of his credibility as a witness outweighs the potential risk that the jury might use that prior conviction as evidence that the appellant is the type of person likely to have committed the offences with which he was charged.

(iv) Attack on the Credibility of Crown Witnesses

[24] 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.)

[25] In R. v. Batte (2000), 2000 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont. C.A.) at paras. 46-47 Rosenberg J.A. for the court held that,

There is a distinction between an attack on the character of Crown witnesses initiated by the defence and attempts by the defence to meet the prosecution's evidence that incidentally impacts 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. The cross-examination of the complainant’s mother on the Bahamas incident, for example, was not a gratuitous attack on her virtue. Crown counsel led evidence that the appellant and the N. family went on trips to the Bahamas, but after the 1979 trip there was no further socialization with the appellant. Crown counsel also led evidence about the finding of the soiled panties, which the complainant linked to the last time she went to the appellant’s farm, and the abrupt change in the complainant’s personality at the same time. The prosecution was clearly attempting to bolster its case by linking all of these changes to the abuse of the complainant. It was open to the defence to show that there was an alternative explanation for at least some of this change in the relationship between the appellant and the N. family, namely the alleged incident in 1978 between Mrs. N and the appellant in the Bahamas. The same may be said of the attack on Mrs. N.’s testimony because she had not mentioned the change in the complainant’s manner of dress. The manner of dress was raised in direct examination and it was proper for the appellant to attack the accuracy of Mrs. N’s recollection by showing that she had never mentioned this matter before. This was not an attack on Mrs. N.’s character.

Similarly, a suggestion that the complainant’s evidence of the abuse was untrue was not an attack on her evidence because of bad character. The appellant was entitled to deny his guilt and repudiate the allegations 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 discussed in Corbett.

[26] In R. v. McFadyen 2002 3327 (ON CA), 161 CCC (3d) 252, Goudge J.A. for the court, in deciding that the trial judge made a clear error in the exercise of his discretion on the appellant’s Corbett application, held that, “the appellant’s attack on the complainant’s credibility was not based on any assertion that she had a bad character or a criminal record of her own…. In the circumstances of this case, particularly that they are such old convictions and for similar offences, that error requires a new trial.”

[27] 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. Analysis and Conclusion

[28] I have considered the factors set out in R. v. Corbett, 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. I am mindful that the factors elicited in Corbett must be weighed as to their “relevance to probative value and prejudicial effect bearing in mind that the general preference is to give the jury all the information but at the same time give a clear direction as to the limited use they are to make of such information.” (R. v. McFadyen, 2002 3327 (ON CA), [2002] 161 C.C.C. (3d) 252 (Ont. C.A.) at para. 9.)

[29] Cross-examination of an accused allows the jury to make an informed assessment of the credibility of the competing versions of events. Prior convictions bear on a witness’ credibility and are one of the things to be taken into account by the jury in assessing the credibility of a witness’ testimony. (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.).)

[30] Credibility is a key issue in this case: two loaded firearms were found in the apartment. The key issue to be determined is whether the loaded firearm and magazine located in the suitcase in the children’s’ bedroom belonged to Grizzle.

[31] Grizzle has a lengthy and serious criminal record that includes twelve convictions. There is a pattern of criminal behaviour from 2005 to 2012 including several convictions for crimes that involve violence and or the use of firearms.

[32] During his cross examination of Sergeant Young, Grizzle’s counsel attacked Sergeant Young’s character. He suggested Sergeant Young planted evidence by taking Grizzle’s wallet that had been left in the living room and putting it in the suitcase so that Grizzle would be convicted of possession of the loaded firearm and magazine found in the suitcase. This is a serious attack on Sergeant Young’s character as the allegation is that he engaged in criminal conduct to convict Grizzle of a criminal offence. Moreover, many of the Crown witnesses (all but one of whom were police officers) were questioned by Grizzle’s counsel at some length about whether they accurately recorded what had happened, and whether they conducted the search according to standard practices.

[33] In this context, if only a minor part of Grizzle’s criminal record is placed into evidence, there will be no fair and balanced picture of Grizzle’s history of telling the truth and regard for the rules of society. These entries form a significant part of Grizzle’s criminal record.

[34] I disagree with Grizzle’s counsel’s suggestion that the fact that firearms are often associated with the commission of violent acts means that including the convictions for assault and robbery are so similar that including them would lead to propensity reasoning. The fact that possession of a firearm may lead to the commission of a violent offence does not mean that the offence of possession itself is itself a violent offence.

[35] For these reasons, I find that the assault and robbery charges are different in nature than the charge of possession of a loaded firearm. The probative value of the assault charges and robbery charge in presenting a balanced picture of Grizzle’s history of the regard for the rules of society outweighs the prejudicial effect bearing in mind that the jury will be provided with clear instructions as to their use.

[36] However, reference to convictions for possession of weapons and weapons related offences and use of an imitation firearm in the commission of the robbery are so similar to the charges Grizzle now faces, that they could lead to propensity reasoning that Grizzle is the type of person who was in possession of firearms on several occasions and therefore likely would be in possession of a firearm in this case. For these reasons, and because there are several other convictions in Grizzle’s criminal record, the convictions for possession of firearms and an imitation firearm will be excised from the list of convictions given to the jury should Grizzle choose to testify.

[37] I also believe that if the attempt murder conviction remains, the jury might believe Grizzle is unlikely to have more respect for the truth than he has shown for human life if the attempt murder conviction were included. There is authority for a trial judge to edit a criminal record to minimize its prejudicial effect. (See R. v. Batte, supra at para 51.) In view of the dangers associated with presenting the jury with a conviction of such seriousness as attempted murder, the attempt murder conviction will be read down and an assault conviction stand in its stead.

[38] For the above reasons, the following entries on Grizzle’s criminal record may be canvassed at trial if he elects to testify:

i. 2005-01-05: fail to comply with the terms of bail;

ii. 2005-06-03: assault;
theft under $5000;

iii. 2005-09-06: fail to comply with recognizance;

iv. 2006-01-10: fail to comply with the terms of bail (x 2);

v. 2007-01-04: assault;

vi. 2007-03-22: assault,
fail to comply with a disposition; and

vii. 2012-09-12: robbery.

[39] This decision is based on the understanding that the jury will not be misled by a suggestion on the part of Grizzle’s counsel that this represents the entirety of Grizzle’s criminal record.

[40] If Grizzle chooses to testify, the jury will be instructed that his convictions may not be used as evidence of his propensity to commit crimes but only to assess his credibility.

Thorburn J.

Released: August 16, 2013

CITATION: R. v. Grizzle, 2013 ONSC 6521

COURT FILE NO.: CR-13-50000518-0000

DATE: 20130816

ONTARIO
SUPERIOR COURT OF JUSTICE

OMAR GRIZZLE

– and –

HER MAJESTY THE QUEEN

Ruling

Thorburn J.

Released: August 16, 2013