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

1L.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.

2At 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.

3It 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.

4It is further agreed between counsel that the two prior adult convictions for assault, in 2007, and sexual assault, in 2009, be edited. I concur.

5I am grateful to both counsel for their helpful oral submissions.

The Positions of the Parties

The Defence

6The 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

7The Prosecution submits that all of L.S.’s remaining prior adult criminal convictions ought to be available for cross-examination.

General Principles

8The Trial Judge has discretion to exclude or edit prejudicial evidence of a prior conviction of the accused.

9The 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.

10The burden of proof is on the Applicant, the Defence. The standard of proof is on a balance of probabilities.

11Factors 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

12L.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.

13L.S. has one prior conviction, in 2006, for possession of a controlled substance. For the exact same reasons, that conviction shall be edited.

14L.S. has one prior conviction, in 2007, for mischief under $5000.00. For the exact same reasons, that conviction shall be edited.

15L.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.

16The 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

17For the above reasons, the Application by the Defence is allowed in part.

18The nine convictions for personation with intent and breach, between 2006 and 2007, shall be admissible at trial, in the event that L.S. testifies.

19Of course, I shall instruct the Jury on the permissible and prohibited uses of the prior criminal record.

20Otherwise, the criminal record of the accused shall be excluded from the evidence at Trial.

21Order accordingly.

Conlan J.