ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR1350000193

DATE: 20140115

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.M.G.

Defendant

Stuart Rothman, for the Crown

Cheryl Brunet, for Mr. A.M.G.

HEARD: January 13, 2014

R.F. goldstein J.

RULING ON corbett application

[1] Mr. A.M.G. was arraigned before a jury on one count of sexual assault and one count of unlawful confinement. He pleaded not guilty. The Crown has closed its case. The defence has not yet called evidence.

[2] Mr. A.M.G. has a criminal record. Ms. Brunet, Mr. A.M.G.’s counsel, asked me to edit the record prior to his testimony. This application is commonly known as a Corbett application: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385, 64 C.R. (3d) 54.

[3] Mr. A.M.G.’s criminal record consists of the following entries:

• A youth conviction for robbery from 2004 for which he received 18 months probation;

• Convictions for dangerous operation of a motor vehicle from 2009 and flight while pursued by peace officer for which he received a six month conditional sentence and six months probation concurrent;

• A conviction for assault and theft as an adult from 2012 for which he received 18 months probation concurrent, in addition to 11 months of pre-trial custody.

[4] Ms. Brunet asked that Mr. A.M.G.’s entire record be withheld from the jury. Mr. Rothman, for the Crown, asked that he be permitted to adduce the entire record in cross-examination. On January 9, 2014 I ruled that the Crown could cross-examine on the record, with the exception of the youth entries, for reasons to follow. These are my reasons.

FACTS

[5] The complainant, H.F., testified that she is an escort. In the early morning hours of March 30, 2011 Mr. A.M.G. called her in response to an ad that she placed in the Toronto Sun newspaper. Mr. A.M.G. called from a landline. She called him back to confirm. They discussed rates and times. She testified that Mr. A.M.G. then called her from a payphone at a gas station in the neighbourhood. She knew it was the gas station because she recognized the number. He indicated that he had to walk because he had taken a cab and the driver would not take him to her motel. When he got to her room he indicated that he would stay 30 minutes and began to take of his clothes. She asked for the money. He stated that he would pay but that he could not get the money from the ATM. H.F. insisted that she had to have the money up front. Mr. A.M.G. then dressed, asked for a hug, and left to go get the money. H.F. testified that he then called her from another payphone that she recognized as being in the area perhaps 15 minutes later. According to H.F., Mr. A.M.G. indicated that he had the money and was on the way back.

[6] Mr. A.M.G. came back and took off most of his clothes again. H.F. asked him again for the money. He then said “come here” and flew off the bed, preventing her from leaving the motel room. He pulled her down toward the bed by the elastic of her skirt. Mr. A.M.G. said “I don’t want to hurt you” and began to spread her legs. He tried to perform oral sex on her. She stopped him and said that she was going to give him what he wanted but that it was rape. Mr. A.M.G. continued anyway. She asked him to use a condom, which he did. She testified that afterwards Mr. A.M.G. offered money but she told him that it was on the house because she just wanted him to leave.

[7] H.F. also testified that she collected the evidence of the condom and gave it to the police because she wanted to make sure that Mr. A.M.G. did not get away with raping her. After the sexual assault she took a shower, collected her thoughts, slept for a while, and called the police.

[8] H.F. further testified that she called the landline after the assault but before going to the police. A woman who could not speak English answered. H.F. tried to tell her that a person in the house had used the telephone and had come over and raped her.

[9] In cross-examination, H.F. acknowledged that she erased the history from her cell phone prior to going to the police. She said that she routinely erased the history. She also acknowledged that she washed her clothes after the encounter with Mr. A.M.G. but then threw them out. She testified that she gave the sheets to the maid to be washed.

[10] In cross-examination, Ms. Brunet, Mr. A.M.G.’s counsel, suggested a very different version of events. She suggested that H.F. was lying. She suggested that the sex between H.F. and Mr. A.M.G. was consensual. She suggested that Mr. A.M.G. could not maintain an erection during sex because of H.F.’s personal hygiene, and that H.F. had to perform oral sex in order to make him erect again so that they could complete the sexual activity. Afterwards, H.F. demanded extra payment for the oral sex. Mr. A.M.G. refused. They argued. Ms. Brunet suggested that H.F. called Mr. A.M.G.’s home later to demand payment. The defence theory is that Mr. A.M.G. threatened to go to the police with information about H.F., which caused H.F. to beat him to the punch by going to the police with a sexual assault allegation first. H.F. denied all of the allegations.

ANALYSIS

[11] Cross-examination on a prior criminal record is presumptively permitted: R. v. Paul, 2009 ONCA 443, [2009] O.J. No. 2184, 249 O.A.C. 199 (C.A.). A trial judge, however, has discretion to exclude evidence in order to preserve an accused person’s right to a fair trial. How should I exercise my discretion in the circumstances of this case?

[12] In R. v. Grizzle, 2013 ONSC 6521 my colleague Thorburn J. very helpfully summarized the factors to be considered on a Corbett application:

(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.

[13] Ms. Brunet, on behalf of Mr. A.M.G., argued that the whole of the record should be excised, as the probative value of the convictions is outweighed by the prejudicial effect. She argues that the convictions are likely to lead the jury to the conclusion that he is the kind of person who is disposed to commit crimes. She further argues that crimes of dishonesty are the most probative of Mr. A.M.G.’s credibility. Since there are no convictions on his record for crimes of dishonesty, the record has no relevance to his credibility.

[14] I disagree. In my view, applying the Corbett factors leads to the conclusion that excising the entire record would leave the jury with a misleading impression.

The Nature Of The Previous Convictions

[15] It is certainly true that a conviction for a so-called crime of dishonesty says something about the credibility of an accused person. That said, there is no rule that only crimes of dishonesty may be placed before the jury: R. v. Saroya, 1994 955 (ON CA), [1994] O.J. No. 2920, 36 C.R. (4th) 253 (C.A.); Paul at para. 15.

[16] I am aware that the previous convictions include violent crimes, such as robbery and assault. The presence of violent crimes always carries with it the danger that the jury will infer that the accused is a violent person and therefore more likely to infer that the accused sexually assaulted H.F. It was for this reason that I denied the Crown’s application to adduce similar fact evidence in relation to one of those convictions. There is an important distinction, however, between similar fact evidence – where the Crown seeks to introduce the underlying facts of the conviction – and cross-examination on the record, where the Crown may not adduce those facts. As well, here the accused has chosen to testify. I am satisfied that any prejudice arising from the fact of the convictions can be dealt with by way of a limiting instruction to the jury.

The Remoteness Or Nearness Of The Previous Convictions

[17] In my view, the convictions are sufficiently removed from the current charges to remove the prospect that the jury will engage in impermissible propensity reasoning and assume that Mr. A.M.G. is a habitual criminal and therefore more likely to have sexually assaulted H.F.

[18] The youth record, however, is remote. It was also accumulated, obviously, when Mr. A.M.G. was a young person. The combination of remoteness and youth leads me to believe that the prejudicial effect of that conviction is outweighed by its probative value.

The Similarity Of The Previous Convictions To The Charge At Issue

[19] As noted in Corbett, where the previous convictions are very similar to the current charge, there is a significant danger of prejudice. In this case, none of Mr. A.M.G.’s convictions are for sexual assault or unlawful confinement, which are the current charges. The danger of inadmissible propensity reasoning is low. This factor militates in favour of inclusion.

Whether Or Not There Has Been A Deliberate Attack On The Credibility Of A Crown Witness

[20] The cross-examination of H.F. consisted of a frontal assault on H.F.’s credibility. Defense counsel called her manipulative and a liar. There is, of course, nothing wrong with such an attack provided counsel has a good-faith basis for it: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193.

[21] The key in issue in this case is credibility. Where there has been a an attack on the credibility of the Crown witnesses there is a danger that the jury will be left with a misleading picture, as Chief Justice Dickson pointed out in Corbett:

33 It is my view that on the facts of the present case, a serious imbalance would have arisen had the jury not been apprised of Corbett's criminal record. Counsel for Corbett vigorously attacked the credibility of the Crown witnesses and much was made of the prior criminal records of Marcoux and Bergeron. What impression would the jury have had if Corbett had given his evidence under a regime whereby the Crown was precluded from bringing to the jury's attention the fact that Corbett had a serious criminal record? It would be impossible to explain to the jury that one set of rules applies to ordinary witnesses, while another applies to the accused, for the very fact of such an explanation would undermine the purpose of the exclusionary rule. Had Corbett's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. It cannot be the case that nothing short of this entirely misleading situation is required to satisfy the accused's right to a fair trial.

Conclusion

[22] The Crown will be permitted to cross-examine Mr. A.M.G. on all of his adult criminal record. The Crown may not cross-examine on Mr. A.M.G.’s youth record. I reach this conclusion for the following reasons:

• The jury will have a misleading picture if Mr. A.M.G. is permitted to present himself as a person with an unblemished record.

• Mr. A.M.G.’s right to a fair trial can be preserved with an appropriate instruction to the jury that they must consider his previous convictions only for the purpose of evaluating his credibility.

• The nature and nearness of Mr. A.M.G.’s adult convictions does not generate a risk of impermissible propensity reasoning by the jury.

DISPOSITION

[23] The application with regard to the adult record is dismissed. The application with regard to the youth record is granted. The Crown may cross-examine in the manner that I have outlined.

Goldstein J.

Released: January 15, 2014