Court File and Parties
CITATION: R. v. Martin, 2016 ONSC 2634
COURT FILE NO.: CR 15/15
DATE: 2016/04/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent
AND:
CAMERON DELL MARTIN, Applicant
BEFORE: MADAM JUSTICE K.A. GORMAN
COUNSEL: Craig Sigurdson, Counsel, for the Respondent
Cameron Dell Martin, Self-Represented
HEARD: April 8, 2016
ENDORSEMENT
[1] The Applicant brings a Corbett application to exclude cross-examination on his criminal record. The Crown opposes the application on the basis that the trial has largely been a contest of credibility, with the Applicant strenuously cross-examining the witnesses in this manner.
[2] Mr. Martin has an unenviable record, composed of some 94 convictions, many of which are convictions for crimes of dishonesty. The record commences in Youth Court in 1991and concludes in June, 2015.
[3] The leading case is R. v. Corbett 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670. As the court stated at paras. 21- 23:
The history of the Canada Evidence Act, s. 12 and its predecessors is set out in La Forest J.'s reasons and in the judgment of Martin J.A. in R. v. Stratton (1978), 1978 CanLII 1644 (ON CA), 42 C.C.C. (2d) 449 (Ont. C.A.). Cross-examination of an accused with respect to prior convictions has been permitted in Canada since an accused first became competent to testify on his own behalf in 1893: R. v. D'Aoust (1902), 1902 CanLII 99 (ON CA), 5 C.C.C. 407 (Ont C.A.). What lies behind s. 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility.
This rationale for s. 12 has been explicit in the case law. See, e.g., R. v. Stratton, supra, at p. 461, per Martin J.A., "Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or [page686] convictions, is a relevant fact in assessing the testimonial reliability of the witness."
Similarly, in R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342, per Martin J.A., "The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness."
[4] In R. v. Charland 1996 CanLII 7284 (AB CA), [1996] A.J. No. 819 at para. 34 the court stated:
While an attack by an accused on the credibility of prosecution witnesses or an attempt to establish his own good character are not prerequisites to finding that evidence of the accused's previous convictions is admissible, an attack on a crown witness's credibility substantially increases the probative value of previous criminal convictions of the accused. The failure to permit the cross examination on the accused's previous convictions could mislead the jury into a belief that, while Crown witnesses were disreputable, the accused was a person of good character (see R. v. Corbett, supra, Dickson C.J. at p. 405; R. v. Dahlbeck, supra; and R. v. Halliday, supra).
[5] Mr. Martin has been convicted of many offences which are similar to the offences for which he is being tried. This is where it is important that the court weigh the potential prejudice to the Applicant versus the probative value to the triers of fact. As the court stated in Corbett at paras 155-157:
Clearly, the probative value and prejudicial effect of a previous conviction are directly affected by the nature of that conviction. As the Court of Appeals, D.C. Circuit, stated, in Gordon v. United States, 383 F.2d 936 (1967), at p. 940:
In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a "bad" person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct [page741] which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity.
Clearly, too, the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission. I agree fully with the opinion of the court in Gordon, supra, at p. 940, that:
A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time". As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. [Emphasis added.]
[6] In my view, employing the principles as articulated above, and mindful of the fact that Mr. Martin is self-represented, I conclude that there must be some editing of Mr. Martin’s criminal record in order to ensure procedural fairness. Accordingly:
The entries prior to the year 2000 will be redacted owing to their remoteness in time;
All “Driving While Impaired” entries will be redacted, as they have limited probative value;
The convictions for “Flight while pursued by peace officer” will be redacted;
The 2004, 2007 and 2008 convictions for “Drive disqualified” will be redacted.
[7] The remaining entries may be the subject of cross-examination. It should be noted that the subsequent convictions for Dangerous driving and Drive disqualified form the basis for the charges in the indictment relating to driving while prohibited from so doing.
K.A. GORMAN
Date: April 11, 2016