ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-A10759
DATE: 2014/05/29

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS GUTHRIE

Kerry McVey, for the Crown

Paolo Giancaterino, for the accused

HEARD: May 28, 2014 (Ottawa)

Ruling RE CORBETT APPLICATION

PARFETT J.

1Pursuant to s. 12(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, a witness in a criminal proceeding, including the accused if the accused chooses to testify, may be questioned as to whether he has been convicted of a criminal offence. Defence counsel brings an application pursuant to R. v. Corbett¹ for a ruling prohibiting the Crown from cross-examining Guthrie on certain aspects of his criminal record for the purpose of challenging his credibility. Specifically, Defence requests that the two convictions for assault be expunged and the two convictions for robbery be read as thefts.

2Dickson C.J.C., speaking for the majority in Corbett, stated:

34. There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But 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.

35. In my view, the best way to balance and alleviate these risks is to give the jury all of the information, but at the same time give a clear direction as to the limited use they are to make of such information.²

3Prior convictions are admitted in relation to credibility on the theory that the character of a witness, as evidenced by prior convictions, is a relevant fact in assessing the testimonial reliability of the witness.

4There are, however, limitations to that theory. Dickson C.J.C. went on to state that the trial judge has a discretion to exclude prejudicial evidence of previous convictions if their admission would make the trial unfair, and he adopted as useful the catalogue of factors listed by La Forest J. (in dissent) to which reference may be had in determining how this discretion is to be exercised. That catalogue of factors includes:

• the nature of the previous conviction(s);
• remoteness or proximity in time of the previous conviction(s) to the current offence;
• the similarity of the previous conviction(s) to the current charge(s); and
• fairness to the trial process.³

5In regard to fairness, both Dickson C.J.C. and La Forest J. highlighted that it would not be fair to prohibit cross-examination of the accused in regard to previous convictions if a deliberate attack had already been made by the Defence upon the credibility of a Crown witness, especially when the attack had been based on the prior criminal record of the Crown witness.⁴

6In this case, Defence counsel has made much of the criminal record of the complainant, who has numerous convictions for offences of dishonesty as well as a handful of convictions for assault. Defence spent the bulk of his time cross-examining the complainant on the assaults. When asked by the court how he reconciled his approach with the admonition in Corbett that an attack on the credibility of the complainant using his criminal record would militate against editing the accused’s record, Defence replied that the complainant had invited the cross-examination by alleging that he was a peaceful man who would not assault someone. There is no question that the complainant opened the door to such a cross-examination. However, the fact remains that through his cross-examination, Defence made it clear to the jury that the complainant was a person who could be violent.

7As a general rule, certain types of convictions are not held to be relevant to credibility. As an example, assault convictions are not considered to be relevant to credibility, nor are crimes involving drugs, or impaired driving offences. On the other hand, thefts and frauds or obstructing justice convictions are considered to be very relevant.⁵ However, a criminal record – whether for crimes of dishonesty or other types of crimes – is considered to be relevant to show that the accused is someone who has demonstrated contempt for law that he is legally and morally bound to obey.⁶

8The starting point in a Corbett analysis is the following:

There is no presumption against the admissibility of the accused’s criminal record where he or she chooses to testify. To the contrary, as indicated by the majority in R. v. Corbett, … cross-examination on a criminal record of an accused who chooses to testify will be the usual course.⁷

9On the other hand, the Court must attempt to achieve a balance between the risk that the jury might use the criminal record for the improper purpose of indicating predisposition and the risk of the jury being presented with a distorted picture of the respective credibility of the complainant and the accused.⁸

10The context of the particular case can play a significant role in this analysis.⁹ In the present case, much if not all of the assault was recorded on videotape. That tape has been admitted into evidence with the admission by Defence that the person seen attacking the complainant is the accused. Consequently, there is no issue in this case of identification, nor is there a denial that the accused committed some form of violent offence. These factors reduce the prejudicial effect that the criminal record and its convictions for assault and robbery could have on the jury.

11Defence counsel also argues that some of the offences are too remote in time to have any significant probative value. He points to the 2001 and 2005 assault convictions as being too remote in time to be probative. Crown responded that a close look at the accused’s record shows that he was incarcerated for lengthy periods of time and that although it appears that there are gaps in the record, in fact the record shows that the accused has been criminally active throughout 2001 to the present. She argues that if the 2001 and 2005 convictions were removed, it would leave the impression that the accused had managed to live a law-abiding life for certain stretches of time. That would create a distorted picture.¹⁰

12Crown counsel concedes that assaults by themselves do not have a direct bearing on the issue of credibility. However, she contends that in this case to expunge the assault convictions and read down the robbery convictions as mere thefts would leave the entirely false impression that while the complainant was disreputable and prone to violence, the accused was nothing more than a petty thief.¹¹

13In assessing the balance that must be struck to ensure a fair trial, I take into account the type of convictions, the extent to which they may relate to the issue of credibility, and the age of those convictions. I also take into account the considerable attack that was made on the complainant for his convictions for assault. I agree with Crown counsel that the assault and robbery convictions are relevant to credibility on the basis that they reflect a disregard for the laws and rules of society. Finally, I take into account the fact that credibility is the key issue for the jury to decide in this case and therefore there is a need to present a fair and balanced picture of the two major players in the case. Consequently, I will not edit the accused’s criminal record.

14It goes without saying that I will give the jury both a mid-trial and a final instruction outlining clearly what use they can and cannot make of the accused’s criminal record should he testify.

Madam Justice Julianne A. Parfett

Released: May 29, 2014

COURT FILE NO.: 13-A10759
DATE: 2014/05/29

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS GUTHRIE

RULING RE CORBETT APPLICATION

Madam Justice Julianne A. Parfett

Released: May 29, 2014

Footnotes

1. 11988 80 (SCC), [1988] S.C.J. No. 40.
2. 2Ibid., at paras. 34-35.
3. 3Ibid., at paras. 159-168.
4. 4Ibid., at para. 158. See also R. v. D.A.L., [2009] O.J. No. 2885 (S.C.J.) at para. 6.
5. 5R. v. Willis, [1999] O.J. No. 1551 (S.C.J.) at para. 9, R. v. Wilson, 2006 20840 (ON CA), [2006] O.J. No. 2478 (C.A.) at para. 33.
6. 6Corbett, supra, at para. 27.
7. 7R. v. P.(N.A.) (2002), 2002 22359 (ON CA), 171 C.C.C.(3d) 70 (Ont. C.A.) at para. 20.
8. 8R. v. D.B.T. (1994), 1994 929 (ON CA), 89 C.C.C. (3d) 466 (Ont. C.A.) at p. 470.
9. 9See P.(N.A.), supra, where the Crown had led evidence of the accused’s inculpatory remarks that could support the conclusion that the accused could be violent, thereby lessening the prejudice of admitting his criminal record that contained crimes of violence.
10. 10R. v. Pinkus, [1999] O. J. No. 4428, at para. 19.
11. 11Wilson, supra. at para.34.