CITATION: R. v. R. , 2016 ONSC 5357
COURT FILE NO.: CR – 15-2270
DATE: 20160824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.J.R.
Defendant/Applicant
Cheryl Goodier, for the Crown
Robert Chartier, for the Defendant
HEARD: August 15, 16, 17, 18, and 19, 2016
RULING ON CORBETT APPLICATION
CHARNEY J.
Introduction
[1] The defendant is being tried by a jury for sexual assault in relation to an incident that was alleged to have taken place in 1971. Since the allegations date back to 1971 he is charged under the provisions of the Criminal Code R.S.C. 1970 c.C-34 (the Code). Accordingly, his charges include rape (sexual intercourse without consent) contrary to s.143 of the Code and indecent assault contrary to s. 149 of the Code. He was also charged with incest (s.150 of the Code) and unlawful confinement (s.247 of the Code). The incident is alleged to have taken place in the complainant’s apartment in Richmond Hill in November or December 1971 when the applicant escaped from prison.
[2] At the end of the Crown’s case, defence brought a Corbett application (R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670) to exclude part of his criminal record as evidence at trial.
[3] The applicant’s criminal record consists of some 34 convictions between 1966 and 1999. Most of those convictions relate to breaking and entering, theft and possession of stolen property. Five of the convictions relate to attempted rape, gross indecency, indecent assault, sexual assault and sexual interference. The Crown has agreed that these five convictions should be excluded from the criminal record on the basis that the potential prejudice of this evidence as propensity evidence exceeds its probative value. The Crown has also agreed to the exclusion of a 1991 conviction for possession of narcotics on the basis that it is irrelevant.
[4] In addition to the agreed exclusions, the applicant seeks the exclusion of a 1969 conviction for escape from lawful custody and two convictions for assault causing bodily harm, the first in 1976, and the second in 1978.
[5] After hearing the submissions of counsel I gave short oral reasons for ruling that the conviction for escape lawful custody would not be excluded, but that the convictions for assault causing bodily harm would be excluded. I indicated that I would expand upon those reasons in writing.
Analysis
[6] The test for a Corbett application is whether permitting the Crown to ask the applicant if he has been convicted of the criminal offences at issue would result in an unfair trial. This question is resolved by measuring the probative value of the prior convictions to an assessment of the applicant’s testimonial credibility against the prejudice from propensity reasoning that may result if the offences are revealed to a properly instructed jury.
[7] In Corbett the Supreme Court of Canada set out the following factors that a court should consider when exercising its discretion (at paras. 152-158):
(a) The nature of the previous conviction(s). Given that the limited use of the prior record relates to the assessment of the witness’ credibility, a conviction for perjury or other crimes of dishonesty may be more telling about a person’s honesty and integrity than a conviction for possession of narcotics;
(b) The degree of similarity between the prior conviction and the alleged offence: the more similar the previous convictions are to the charges before the court, the greater the dangers of propensity reasoning;
(c) The remoteness or proximity of the prior offence(s);
(d) Where the accused has attacked the character/credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view or misleading picture be left with the jury; and
(e) The effectiveness of a limiting jury instruction.
[8] The direction from Corbett is that judges should start from the premise that juries should receive all relevant information, accompanied where necessary by an appropriate caution or limiting instruction. An “accused’s criminal record, including convictions for crimes of violence, could have a direct bearing on the credibility of the accused as a witness” (R. v. Talbot, 2007 ONCA 81, at para. 32). Orders restricting the jury’s access to information about the criminal record of an accused should be made only where there are clear grounds to do so: R. v. Mayers, 2014 ONCA 474, para. 5; R. v Hong, 2015 ONSC 4865 at para. 58. As stated by Doherty J.A. in R. v. P. (N.A.) (2002), 2002 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.) at para. 20:
There is no presumption against the admissibility of the accused’s criminal record where he or she chooses to testify. To the contrary, as indicated by the majority in R. v. Corbett, supra, cross-examination on a criminal record of an accused who chooses to testify will be the usual course.
Application of Test
[9] The credibility of the applicant and the complainant are central issues in this case. The defence is that the alleged assault never happened. The anticipated evidence of the applicant (and the evidence that he gave at trial) is that when he escaped from prison in 1971 he did not go to the complainant’s apartment. He did not know where she lived. He went to his parents’ home in Newmarket. He did not even see the complainant, and did not rape her.
[10] The applicant contends that while he has attacked the complainant’s credibility he has not attacked her character. The Ontario Court of Appeal has distinguished between “an attack on the character of Crown witnesses initiated by the defence and attempts to meet the prosecution’s evidence that incidentally impact on character” (R. v. Batte (2000), 2000 5750 (ON CA), 34 C.R. (5th) 263 at para. 46) “A suggestion that the complainant’s evidence …was untrue is not an attack on her evidence because of bad character”(Batte, para. 47).
[11] Defence counsel in this case cross-examined the complainant with regard to prior inconsistent statements she made to the police and at the preliminary inquiry in 2015. He used these inconsistencies to challenge the reliability and credibility of her evidence, but was careful not to call her character into question.
[12] With respect to the 1969 conviction for escape from lawful custody, the factors set out in Corbett do not support its exclusion. In my view “escape lawful custody” does relate to respect for the judicial system, and a conviction demonstrates disrespect for the law, which is directly relevant to credibility. The offence bears no similarity to the alleged sexual assault offences, and I do not see how any properly instructed jury could conclude that someone has a propensity to engage in sexual assaults because they escaped from lawful custody. In addition, the applicant acknowledges that he escaped from jail in 1971 when the subject offences were alleged to have occurred. In my view the probative value of the 1969 escape lawful custody conviction exceeds any potential prejudicial effect and I am not persuaded that inclusion of this offence would operate unfairly to the applicant.
[13] I have come to a different conclusion with respect to the two convictions for assault causing bodily harm. While “assault causing bodily harm” is not the same as “indecent assault” courts have held that prior convictions for assault can have a prejudicial effect in that “the jury might properly conclude that the accused had a propensity to act violently and might make adverse inferences from that fact…” (R. v. Hankey, 2008 68132 (ON SC), at para. 13, citing R. v. Talbot at paras. 33-34). That is particularly true in the present case where the allegations of rape and indecent assault include allegations of violent physical force (being pulled by her hair and held down) that would qualify as assault even if no rape occurred.
[14] In addition, courts have held that “acts of violence, such as assaults, do not necessarily have a direct bearing on a person’s credibility” R. v. Chretian, [2009] O.J. No. 800; 2009 9381 (ON SC), at para. 28.
[15] The remaining 27 entries in the applicant’s criminal record are convictions for offences such as breaking and entering, theft, possession of stolen property, being unlawfully in a dwelling house, and making a false affidavit. Those convictions show a pattern of dishonesty and disrespect for the law and are highly relevant to credibility and honesty. The redaction of the two convictions for assault causing bodily harm does not detract significantly from the probative value of the remaining crimes. A jury apprised of these 27 offences would not, in my view, be left with an inaccurate picture of the persistence of the applicant’s involvement in dishonest conduct.
Conclusion
[16] Accordingly, balancing all the considerations that I am required to take into account in the exercise of my discretion to exclude evidence of prior convictions of the accused when he is cross-examined by the Crown, I conclude that the potential prejudice arising from the evidence of the two convictions for assault causing bodily harm outweighs the probative value it may have in relation to an assessment of the applicant’s testimonial credibility. Accordingly, the two convictions for assault causing bodily harm, the first in 1976, and the second in 1978, are to be redacted from the applicant’s criminal record.
Addendum – Section 666 Application
[17] Following my ruling on this Corbett application, the accused testified and was asked by defence counsel about his criminal record. Pursuant to my ruling and the agreement between Crown and defence counsel, the redacted criminal record did not include any reference to two convictions (for sexual assault and sexual interference) in 1997 in St. John’s Newfoundland, for which the applicant received two years in prison. Defence counsel did not, of course, ask any questions about the 1997 convictions. Nonetheless, the applicant, upon seeing his redacted criminal record, made the following statement in his testimony: “I haven’t had trouble with the police since 1994”.
[18] This statement was plainly false. Upon hearing this statement, the Crown took the position that the accused had put his character in issue and had lied about his criminal record. She made an application under s. 666 of the Criminal Code to cross-examine the accused with respect to those two offences. Section 666 of the Criminal Code provides:
Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences …
[19] In R. v. N.A.P., 2002 22359 (ON CA), Doherty J.A. explained the significance of s. 666 of the Code (at para. 32):
If an accused puts his or her character in issue during examination-in-chief, the scope of cross-examination on the criminal record permitted by s. 666 goes beyond that allowed under s. 12 of the Canada Evidence Act. Since the cross-examination under s. 666 is predicated on the accused having put his or her character in issue, the accused may also be questioned about the specifics underlying the criminal convictions: R. v. W.(L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 at 465 (Ont. C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 383; R. v. Deyardin (1997), 1997 9988 (QC CA), 119 C.C.C. (3d) 365 at 375-77 (Qc. C.A.). The wide ambit of cross-examination contemplated by s. 666 could have been significant in this case. If cross-examination had been allowed, the jury would have heard not only about the respondent’s conviction for attempted murder but also that it involved a brutal beating administered in the course of a robbery.
[20] In my oral ruling on the s. 666 application I decided that the court had to balance the broad scope of cross-examination under s. 666 with the earlier ruling on the Corbett application. The scope of cross-examination must be proportionate to the character evidence advanced by the accused. To permit the Crown to examine the accused on the details of this conviction could lead to the same prejudice of propensity reasoning that gave rise to the trial unfairness concerns raised by the Supreme Court of Canada in Corbett. It seems to me that such a result would be disproportionate to the statement made by the accused.
[21] While the accused put his character in issue by making this comment, I ruled that the Crown’s cross-examination under s. 666 would be limited to the fact that, contrary to the accused’s testimony, the accused had been convicted of two offences in 1997 and had received a two-year prison term, without referencing the charges. I decided that this was sufficient to correct the misinformation asserted by the accused in chief and to attack his credibility as a witness.
[22] In R. v. N.A.P. the Court of Appeal “draws a line between repudiation of the Crown’s case and putting character in issue” (at para. 36). While the accused’s statement fell on the “putting character in issue” side of the line, he did not go so far as to “assert expressly or impliedly that he would not have done the things alleged against him because he is a person of good character” (R. v. N.A.P. at para. 33, citing R. v. McNamara (No. 1) (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 at 346 (Ont. C.A.)). He simply asserted that he had stayed out of trouble since 1994. While this opened the door to a s. 666 cross-examination, I found that it did not merit the nullification of the Corbett principle.
[23] In R. v. M.(M.) 1995 CarswellMan 287, the Manitoba Court of Appeal stated:
Even when the accused puts his character in issue, cross-examination is not unlimited. The evidence of good character can be rebutted, but cross-examination is not a licence to raise matters which are prejudicial to the accused, and which neither rebut the accused’s assertion of good character, nor are probative of the charge which the accused faces.
[24] In my view the limitation imposed on the Crown’s cross-examination of the accused appropriately balanced the Crown’s right to cross-examine the accused’s evidence of good character under s. 666 of the Code while avoiding matters prejudicial to the accused’s right to a fair trial.
Justice R.E. Charney
Released: August 24, 2016
CITATION: R. v. R. , 2016 ONSC 5357
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.J.R.
Defendant/Applicant
RULING ON corbett application
Justice R.E. Charney
Released: August 24, 2016