ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-833
DATE: 20140918
BETWEEN:
HER MAJESTY THE QUEEN
Ms M. Martin, for the Crown
- and -
L.S.
Ms S. Newbould, for the Defendant
Defendant
HEARD: September 17, 2014
REASONS FOR DECISION ON DEFENCE APPLICATION TO EDIT THE CRIMINAL RECORD OF THE ACCUSED
Conlan J.
Introduction
[1] L.S. stands charged before a Judge and Jury in a three-count Indictment alleging two counts of simple or common assault and one count of sexual assault, all against the same adult female, his former partner.
[2] At the close of the Crown’s case, the Defence Corbett Application was argued. I gave my decision orally, with reasons to follow. These are those reasons.
[3] It is agreed between counsel that L.S.’s two prior youth convictions be edited (assault in 2000 and assault with a weapon in 2002). I concur.
[4] It is further agreed between counsel that the two prior adult convictions for assault, in 2007, and sexual assault, in 2009, be edited. I concur.
[5] I am grateful to both counsel for their helpful oral submissions.
The Positions of the Parties
The Defence
[6] The Defence wants all of L.S.’s remaining twelve (12) 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
[7] The Prosecution submits that all of L.S.’s remaining prior adult criminal convictions ought to be available for cross-examination.
General Principles
[8] The Trial Judge has discretion to exclude or edit prejudicial evidence of a prior conviction of the accused.
[9] 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.
[10] The burden of proof is on the Applicant, the Defence. The standard of proof is on a balance of probabilities.
[11] Factors to consider include,
i. the effectiveness of a limiting instruction to the jury;
ii. the number of prior convictions;
iii. the nature of the prior conviction and in particular whether it is relevant to credibility or honesty;
iv. the timing of the prior conviction;
v. how similar the prior conviction is to the offence(s) charged (the more similar, the greater the chance for exclusion);
vi. whether the defence has attacked the integrity of the police; and
vii. the nature of the defence cross-examination of the Crown witnesses.
Analysis
[12] L.S. has one prior conviction, in 2006, for possession of a weapon. Given the age of that matter, its little relevance to honesty and what I perceive to be the high potential for prejudice relative to minimal probative value, that conviction shall be edited.
[13] L.S. has one prior conviction, in 2006, for possession of a controlled substance. For the exact same reasons, that conviction shall be edited.
[14] L.S. has one prior conviction, in 2007, for mischief under $5000.00. For the exact same reasons, that conviction shall be edited.
[15] L.S. has four prior convictions, all in 2007, for personation with intent. Personation with intent is a classic crime of dishonesty and, thus, it shall not be edited. Its probative value outweighs its potential prejudicial effect.
[16] The remaining entries on L.S.’s criminal record are one conviction for breach of an undertaking (2006), one conviction for breach of recognizance (2006) and three convictions for breach of probation (2007). Those convictions show a pattern of disrespect for the law and Court Orders. They are highly relevant to credibility and honesty. Their probative value outweighs any potential prejudicial effect. Thus, none of those prior convictions shall be edited.
Conclusion
[17] For the above reasons, the Application by the Defence is allowed in part.
[18] The nine convictions for personation with intent and breach, between 2006 and 2007, shall be admissible at trial, in the event that L.S. testifies.
[19] Of course, I shall instruct the Jury on the permissible and prohibited uses of the prior criminal record.
[20] Otherwise, the criminal record of the accused shall be excluded from the evidence at Trial.
[21] Order accordingly.
Conlan J.
Released: September 18, 2014
COURT FILE NO.: CR 14-853
DATE: 20140918
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 18, 2014