ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-853
DATE: 20140911
BETWEEN:
HER MAJESTY THE QUEEN
Ms M. Martin, for the Crown
- and -
M.A.
Mr. S. Cowan, for the Defendant
Defendant
HEARD: September 11, 2014
REASONS FOR DECISION ON DEFENCE APPLICATION TO EDIT THE CRIMINAL RECORD OF THE ACCUSED
Conlan J.
Introduction
[1] M.A. stands charged before a Judge and Jury in a single-count Indictment alleging a sexual assault against an adult female.
[2] At the close of the Crown’s case, the Defence Corbett Application was argued. It is agreed that all of M.A.’s youth convictions be edited.
[3] I am grateful to both counsel for their helpful oral submissions.
The Positions of the Parties
The Defence
[4] The Defence wants all of M.A.’s sixteen (16) prior criminal convictions as an adult to be edited. In other words, the Crown would not be permitted to cross-examine the accused on any prior criminal record.
The Crown
[5] The Prosecution submits that all of M.A.’s prior adult criminal convictions ought to remain and be available for cross-examination.
General Principles
[6] The Trial Judge has discretion to exclude or edit prejudicial evidence of a prior conviction of the accused.
[7] 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.
[8] The burden of proof is on the Applicant, the Defence. The standard of proof is on a balance of probabilities.
[9] 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
[10] M.A. has four prior convictions for assault, in 2007, 2010 and 2012. On the facts of this case, those convictions are too similar to the offence being tried, and thus, those convictions shall be edited.
[11] M.A. has one prior conviction for harassing telephone calls, in 2007. That matter has nothing to do with credibility or honesty, and thus, that conviction shall be edited.
[12] M.A. has one prior conviction for causing a disturbance, in 2012. That matter has nothing to do with credibility or honesty, and further, on these peculiar alleged facts, that item is too similar to the offence being tried, and thus, that conviction shall be edited.
[13] M.A. has one prior conviction for theft, in 2008. That is a classic crime of dishonesty and thus, it shall not be edited.
[14] The remaining entries on M.A.’s criminal record are breaches of probation or recognizance (nine convictions in total). Those convictions show a pattern of disrespect for the law and Court Orders. They are highly relevant to credibility and honesty. None of those prior convictions shall be edited.
Conclusion
[15] For the above reasons, the Application by the Defence is allowed in part.
[16] The ten convictions for theft and breach, between 2007 and 2012, shall be admissible at trial, in the event that M.A. testifies.
[17] Otherwise, the criminal record of the accused shall be excluded from the evidence at Trial.
[18] With regard to the two breaches in 2007, it shall not be mentioned before the Jury that the disposition was made in Youth Court.
Conlan J.
Released: September 11, 2014
COURT FILE NO.: CR 14-853
DATE: 20140911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
M.A.
Defendant
REASONS FOR RULING ON DECISION ON DEFENCE APPLICATION TO EDIT THE CRIMINAL RECORD OF THE ACCUSED
Conlan J.
Released: September 11, 2014