Court File and Parties

Citation: R. v. Brown, 2015 ONSC 1995 Court File No.: CR14900003640000 Date: 2015-03-24 Superior Court of Justice - Ontario

Re: R. v. Recardo Brown

Before: Justice Spies

Counsel: Sam Siew, for the Crown Tyler MacDonald, for Mr. Brown

Heard: March 23, 2015

Ruling on Corbett Application

Overview

[1] After hearing the submissions of counsel I ruled that the Crown could cross-examine Mr. Brown on his three convictions from 1998 for fail to comply with recognizance. Mr. Siew conceded that his prior conviction for possession of a Schedule I substance from 1999 would not be referred to. I advised counsel that I would provide reasons for my decision. These are my reasons.

[2] After I advised counsel of my decision, counsel vetted a draft mid-trial instruction for the jury which I intended to give immediately after evidence of Mr. Brown’s criminal record was heard.

The Test

[3] The governing test is set out in R. v. Corbett, [1988] 1 S.C.R. 670. I have the discretion to exclude some or all of Mr. Brown’s criminal record where its probative value is outweighed by its prejudicial effect. In considering this question I acknowledge that this discretion should be exercised on a case-by-case basis and there is no exhaustive list of factors that I must consider. Among the most significant, however, is the nature of the previous convictions and their remoteness or nearness to the charges now facing Mr. Brown.

[4] Mr. MacDonald argued that the prior convictions for failing to comply with recognizance were too dated to be relevant since they are now almost 17 years old and that they were not relevant to Mr. Brown’s credibility in that they are not crimes of dishonesty. With respect to the date of the prior convictions Mr. MacDonald submitted that the temporal remoteness factor must have some meaning and that after 17 years, given the principle of deterrence in sentencing, Mr. Brown’s prior convictions have no relevance at this time.

[5] Mr. Siew referred to the decision of R. v. Crowley, [2001] O.J. No. 613 where Justice Archibald referred to a decision of our Court of Appeal, HMTQ v. Yvon Gagnon, [2000] O.J. No. 3410 where Justice Weiler outlined the factors to be considered by the trial judge. In summary the factors listed in that decision in addition to what I have already set out are the importance of the prior conviction in the context of the accused’s entire criminal record, the similarity of the previous conviction in relation to the charge facing the accused in the sense that the greater the similarity the greater the prejudice and the conduct of the defence at trial, particularly where an accused has attacked the credibility of a Crown witness.

Analysis

[6] I start with some additional basic principles. There is no presumption against the admissibility of an accused’s criminal record where he chooses to testify; see R. v. P.(N.A.) (2002), 171 C.C.C. (3d) 70 (Ont. C.A.) at para. 20. The onus is on Mr. Brown to establish on a balance of probability that the probative value of the prior criminal convictions is outweighed by the prejudicial effect of the admission of the evidence.; see R. v. Underwood (1998), 121 C.C.C. (3d) 117 (SCC). In R. v. Murray (1997), 115 C.C.C. (3d) 225, the Court of Appeal held that the fact an accused has a criminal record and has been convicted of any criminal offence is relevant to his trustworthiness as a witness.

[7] Mr. MacDonald relies on a decision of Justice Himel; R. v. OYP, [2006] O.J. No. 2223 where in a case where the defendant was charged with possession of cocaine for the purpose of trafficking and possession of proceeds the Crown was only permitted to cross-examine the defendant on prior convictions for offences of dishonesty. Himel J. did not permit cross-examination on prior convictions for assault related offences and “other offences” which included failure to comply with recognizance. Justice Himel found that there was a significant danger that the jury would conclude that the accused had a propensity for crime.

[8] It does not appear that the argument before Justice Himel focused in any way on the failure to comply with recognizance convictions and there were other convictions for offences traditionally considered crimes of dishonesty that the jury would hear about. In any event I have concluded that the authorities are clear that a conviction for failure to comply with a recognizance, being a breach of a promise made by the defendant to comply with bail conditions, is relevant to a defendant’s credibility as a witness should he choose to testify. I do not accept Mr. MacDonald’s submission that because these convictions are not what are traditionally considered crimes of dishonesty that they are not relevant.

[9] In R. v. Thompson, [2000] O.J. No. 2270, the Court of Appeal held at para. 31 that the offence of failing to comply involves a breach of trust and has a direct bearing on a defendant’s credibility. In R. v. Smith, 2007 CarswellOnt 4159, Trafford J. held at para. 36 that failing to comply with a disposition has significant probative value as it relates directly to the integrity of the defendant and his respect for the courts. In R. v. M.F., 2011 ONSC 1601, [2011] O.J. No. 1313 (SCJ), MacDonnell J. considered a similar argument to the one advanced by Mr. MacDonald and concluded at para. 13 that it is not the case that only offences involving dishonest conduct have probative value in relation to testimonial credibility.

[10] The fact these convictions date back to 1998 certainly diminishes their relevance and I have carefully considered that factor. In Corbett, Justice La Forest held that the remoteness or nearness of the previous conviction is “a factor of no small importance” and that even a conviction for fraud or stealing, if it occurred long before and had been followed by a legally blameless life, should generally be excluded on the ground of remoteness.

[11] In considering the remoteness of these convictions I also considered the fact that if admitted, the jury would be instructed to take the remoteness into account. I also considered that fact that there were three such convictions albeit in one year.

[12] Given the language of the court in Murray I accept Mr. Siew’s submission that if the failure to comply convictions were deleted then Mr. Brown would be left with no criminal record and that would amount to a misleading picture for the jury.

[13] Mr. Siew argued that it is also relevant that the Defence has challenged the credibility of two of the police officers and challenged their evidence that they saw Mr. Brown throw the baggie containing crack cocaine over the fence. It is not suggested that the police planted the cocaine but rather the cross-examination of the officers implied that someone else threw the cocaine, that Officer Adams seized the cocaine and when he and Officer Nishikaowa got back to the station they decided to attribute that cocaine to Mr. Brown since he was the only one arrested in the backyard.

[14] In R. v. Brown, [2002] O.J. No. 2562, the Court of Appeal, at para. 24, held that a trial judge who accepted a similar argument made an error in concluding that the cross-examination of the police officers required the evidence of the appellant’s narcotic conviction to avoid an imbalance because the cross-examination attacked both the reliability and honesty of the police officers and was not an attack based on their character but rather on the basis of matters directly connected with the offence. This distinction is also referred to in R. v. Batte, [2000] O.J. No. 2186 at para. 46 where the Court of Appeal held that an attack on Crown witnesses directed at the lack of credit of their accounts of the events, is not an attack of their character and certainly not an attack on their character from prior criminal conduct.

[15] Certainly in this case the honesty of the officers has been challenged but only on the facts of this case, not because of their character. Mr. Siew argues that the case is distinguishable on its facts and Mr. MacDonald argues this is a general principle that applies in this case. In the time available I was not able to determine which position is correct. I have, therefore, decided not to consider this as a factor in the Crown’s favour. Given the conclusion I have come to I concluded that a resolution of this issue in favour of the Crown would not change my decision since I decided that the jury can be told about these convictions.

[16] I considered the prejudice to Mr. Brown but found it to be minimal since these convictions are in no way similar to the offences before the court and particularly with a properly worded mid-trial instruction, followed by a concluding instruction, there is little or no likelihood that the jury would engage in impermissible propensity reasoning. Furthermore, there is no reason to be concerned that the jury would not be able to follow an instruction limiting the use to be made of these prior convictions.

[17] This is a difficult decision but having carefully considered all of these factors I concluded that although the convictions are dated, given the nature and number of the convictions, they are still relevant to the issue of Mr. Brown’s integrity and honesty as a witness and that their probative value outweighs the minimal potential for prejudice to Mr. Brown and the fairness of this trial.

[18] For these reasons the Defence application to exclude the prior convictions for failure to comply is dismissed.

SPIES J.

Date: March 24, 2015 (Orally)

Written Decision Released: March 26, 2015