Citation: R. v. Barreira et al., 2017 ONSC 2447

Court File No.: CR-15-4953

Date: 2017-04-20

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

Ms. Malkovich and Ms. Gzik, Crown Counsel for Her Majesty the Queen

• and -

Brandon Barreira, Joshua Barreira, Chad Davidson and Louis Rebelo

Ms. Goldlist, Defence Counsel for Brandon Barreira Mr. Zaduk and Ms. Page, Defence Counsel for Joshua Barreira Mr. White and Ms. Audet, Defence Counsel for Chad Davidson Mr. Dorsz, Defence Counsel for Louis Rebelo

Heard: at Hamilton April 19, 2017

Reasons for Ruling – Defence Application Brought by Joshua Barreira to Exclude Evidence of Conviction of His Spouse Ms. Jennifer Dagenais and Corbett Application to Exclude Criminal Convictions of Joshua Barreira

The Honourable Mr. Justice Skarica

Introduction

[1] Tyler Johnson was shot in the heart at close range on November 30th, 2013 in downtown Hamilton. Surveillance videos show the shooter (a man wearing a red hoodie, admitted to be the accused Chad Davidson) approaching Mr. Johnson with a gun in his hand and then shooting Mr. Johnson, who ultimately died from his injuries. The shooter can be seen to be accompanied by two other men, as he approached the victim. It is alleged by the Crown that Joshua Barreira (Joshua), one of the other three accused, assisted Chad in a planned and deliberate murder.

[2] Chad and Joshua had common-law spouses on the date of the shooting. Chad and Joshua and their common law spouses got married together in a joint ceremony, approximately two weeks after the shooting and days after Brandon Barreira (Brandon) was arrested for first degree murder. Chad’s spouse Ashley Dore-Davidson (Ashley) pled guilty to accessory after the fact to murder. She had been at the murder scene and drove Louis Rebelo (Louis) away from the scene and later picked up Chad and drove him home. Her criminal conviction was adduced by the Crown when Ashley testified. Jennifer Dagenais (Jennifer) was convicted of accessory after the fact to murder after a trial. Jennifer was not at the murder scene but was convicted on the narrow basis that she witnessed Chad and Ashley’s wedding documents approximately two weeks after the shooting at a time she knew (or was wilfully blind) that Chad had shot Mr. Johnson.

Issues

[3] Should the Crown or any of the parties be permitted to examine or cross-examine Jennifer (the spouse of Joshua) regarding her conviction of accessory after the fact to murder, if or when Jennifer testifies?

[4] Should the Corbett application brought by Joshua be allowed? If so, which convictions should be deleted from his record when he testifies?

Issue #1 – Defence Application Excluding Evidence of Jennifer Dagenais’ Conviction of Accessory After the Fact to Murder

Background Facts

[5] Chad, Joshua, and the two other accused are charged with the first degree murder of Mr. Johnson on November 30, 2013.

[6] The Crown at this trial has adduced videotapes which appear to show the victim Mr. Johnson being shot at close range by the accused Chad.

[7] I understand that the Crown’s theory is that Chad shot Mr. Johnson and was aided and abetted by the other three accused in a planned and deliberate murder.

[8] One of the accused, Joshua, has given two statements. The latter statement indicates that Chad is the shooter and the other three accused were innocent bystanders who merely happened to be in the wrong place at the wrong time. These statements are only admissible against Joshua and not against the other accused. Further, Joshua has admitted to be the man wearing the dark jacket in the videos depicting the shooting.

[9] At the preliminary hearing, the Crown adduced a variety of surveillance videotapes. Krystal Dore and Danielle Waun testified that the person alleged to be the shooter (the man wearing the red hoodie) is the accused Chad. In a previous ruling, I found this evidence to be admissible at trial. Chad has since admitted that he is the man wearing the red hoodie. Two of the other accused, Brandon and Louis, have formally admitted that they can be seen in the video which the Crown alleges reveals the four participants in the murder.

[10] In another previous ruling regarding the admission of prior discreditable conduct regarding Chad and Joshua, I held that evidence showing the relationships between the accused, including being involved in a criminal lifestyle with each other, were admissible to rebut the defence of innocent association (i.e., “being in the wrong place at the wrong time”) as the Crown was alleging that the accused were acting in concert in the execution of the planned and deliberate murder of Mr. Johnson.

[11] These four accused are not the only ones who have been charged in relation to the murder of Mr. Johnson.

[12] Ashley, the wife of Chad, and Jennifer, the wife of Joshua, were charged with commit accessory after the fact to murder on or between November 30, 2013 and February 14, 2014.

[13] Ashley drove Chad to the scene of the murder and also returned Louis to the scene of the murder. After Mr. Johnson was shot, Ashley drove away from the murder scene with Louis. Further, later that night, Ashley picked up Chad from Joshua’s home and drove Chad home with her. Brandon was arrested on December 11, 2013. The police released surveillance videos regarding the murder on December 12, 2013 in the hope of identifying the other three suspects. The next day, on December 13, 2013, Ashley and Chad as well as Jennifer and Joshua were married in a double marriage ceremony. They witnessed the others’ marriage documents.

[14] On February 14, 2014, Chad and Joshua were arrested for first degree murder. On the same day, Ashley and Jennifer were arrested for commit accessory after the fact to murder.

[15] On July 28, 2015, Ashley pled guilty to commit accessory after the fact to murder and was sentenced on October 2, 2015 to three years less time served (equalling 29 months and 18 days), plus three years’ probation.

[16] On March 23, 2016, Jennifer was found guilty following a trial before Parayeski J. of commit accessory after the fact to murder and intent to mislead a police officer by reporting an offence had been committed that had not been committed (she reported her Jaguar was stolen when it was not, after an accident occurred approximately three hours after the murder when she and Joshua were leaving Hamilton to stay at Joshua’s mother’s home in Cambridge).

[17] At Jennifer’s trial, the Crown submitted that Jennifer was guilty of accessory after the fact to murder through (1) assisting Joshua to escape in her Jaguar when the motor vehicle accident occurred on November 30, 2013 at 6 a.m. (three hours after the murder); (2) assisting Joshua to avoid criminal liability by marrying him, thereby creating a right to invoke the spousal incompetency rule relative to Jennifer’s own testimony; and (3) assisting Chad to avoid criminal liability by serving as a witness to his wedding to Ashley, thereby facilitating Chad and Ashley’s invocation of the spousal incompetency rule.

[18] The trial judge, at Jennifer’s trial, held that the Crown had failed to prove beyond a reasonable doubt that Joshua, Brandon and Louis were parties to the killing. The trial judge held that on the basis of the evidence before him at that time, it was possible that they were parties to the killing, but the Crown failed to prove it beyond a reasonable doubt. Regarding the shooter Chad, based on the surveillance tapes, the trial judge held that Chad was shooting an unarmed person in the chest with a handgun and that constituted murder.

[19] The trial judge held that Jennifer was guilty of accessory after the fact to murder in that she assisted Chad by witnessing his marriage documents so that Chad could invoke the spousal incompetency rule. He further held that Jennifer’s intent was to provide that assistance so that Chad could escape criminal liability for the murder.

[20] The Crown indicates that both Ashley and Jennifer have been subpoenaed for this trial. Ashley has testified and admitted that she pled guilty to accessory after the fact to murder and received the equivalent of a three-year sentence. The Crown no longer wishes to call Jennifer, but the defence wishes to call her.

[21] In a mid-trial ruling, I initially ruled that Jennifer’s conviction for accessory after the fact to murder could be adduced as evidence relevant to her credibility, but the facts behind the findings of guilt were not admissible and were not relevant to the guilt or innocence of the accused. Regarding the spousal incompetency rule, I further held in the same ruling that the current law is clear that a spouse is entitled to rely on the spousal incompetency rule even if one of the purposes of marriage is to render a person incompetent to testify. Even if the purpose of the marriage is to take advantage of the spousal incompetency rule, the courts have found that there is nothing legally or morally wrong with that purpose. Given the uncertainty of the law in the context of the evidence at this trial, I further held that the Crown will not be permitted to argue that an adverse inference can be drawn from the fact of these marriages – see R. v. Barreira et al., 2017 ONSC 1179, at paras. 25, 47-50.

[22] After this ruling, the defence brought a further application submitting that my ruling in Barreira above, that the marriages were not legally or morally wrong, undermines the legal basis for Jennifer’s conviction (which is under appeal) and this justifies reconsideration of my ruling and submits that elicitation of this conviction should not be allowed. The defence argues that an act to which no moral blameworthiness attaches is hardly something that can fairly affect a witness’ credibility.

Law

[23] In Barreira, cited in para. 21 of these reasons, at para. 17, I held that it is settled law that that a guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of the guilt or innocence of the accused – see R. v. Berry, 2017 ONCA 17, at para. 35; R. v. P.C., 2015 ONCA 30, at para. 44.; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 17; and R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 39 O.R. (3d) 161, 124 C.C.C. (3d) 392.

[24] In Barreira, at para. 18, I also held that it is settled law that, pursuant to section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, a witness may be questioned as to whether the witness has been convicted of any offence including where the conviction was entered after a trial on an indictment.

[25] At para. 20 of Barreira, I noted that the Crown in P.C. was able to adduce guilty pleas and convictions of two of their witnesses, “particularly given defence counsel’s refusal to refrain from cross-examining on their pleas and convictions.” The Court of Appeal indicated that those convictions were relevant to their credibility as witnesses but were not admissible as evidence against the accused in determining his guilt – see P.C., at paras 40-46.

[26] Then, at para. 22 of Barreira, I referenced Berry, where the Court of Appeal held the trial judge was correct in not editing out the guilty plea and conviction of an accomplice, holding, at paras. 33-42:

32 The trial judge declined to edit the evidence of the guilty plea and conviction out of what was read to the jury.

33 In the trial judge’s view, this evidence was important for credibility purposes. As he said, the jury could not assess the credibility of Jovanovski's evidence in a vacuum: “the status of an accomplice's charge is a vital factor in assessing the credibility of the accomplice witnesses”. The trial judge was satisfied, therefore, that the evidence of Jovanovski’s guilty plea and conviction and the sentence he received was highly relevant and material to Jovanovski’s credibility which, in turn, was an important factor for the jury to consider in its determination of the main issues of self-defence, provocation and (if intent to commit murder were established) planning and deliberation.

34 It was open to the trial judge to adopt this approach, in my opinion, because the guilty plea and conviction may well have provided the strongest basis upon which Jovanovski’s credibility -- and therefore his evidence, which was central to the Crown's case -- could be attacked by the defence. In this respect, the decision was favourable to, rather than prejudicial to the appellant.

35 At the same time, however, the trial judge was very much alive to the need to balance the probative value of the contested evidence against its prejudicial effect. He recognized the settled law that the guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of guilt or innocence of the accused: see R. v. Berry, 1957 CanLII 115 (ON CA), [1957] O.R. 249 (C.A.); R. v. Buxbaum (1989), 1989 CanLII 9944 (ON CA), 33 O.A.C. 1 (C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 239; R. v. Lessard (1979), 1979 CanLII 2901 (QC CA), 50 C.C.C. (2d) 175 (Que. C.A.); R. v. Caesar, 2016 ONCA 599, 350 O.A.C. 352. In the course of his thorough probative value/prejudicial effect analysis, the trial judge gave careful consideration to defence counsel's argument about the prejudicial impact of the accomplice’s guilty plea.

36 The trial judge fully understood the danger that jurors might use the guilty plea to draw impermissible inferences. He concluded, nonetheless, that the risk could be effectively managed by clear instructions to the jury about the permissible and impermissible uses to which the evidence relating to the guilty plea could be put. On that basis he was satisfied that the probative value of the evidence outweighed its prejudicial effect and ruled that it was admissible.

37 In keeping with that reasoning, the trial judge did give very clear instructions, both before Jovanovski’s evidence was read to the jury and in his charge to the jury. In his mid-trial instruction, he said:

Mr. Jovanovski's guilty plea, and this is very important, has absolutely no bearing on whether Mr. Berry is guilty of first-degree murder or any included offence. You must not think that because Mr. Jovanovski has pleaded guilty, Mr. Berry must be guilty of something too. Mr. Jovanovski may have any number of reasons for pleading guilty and any number of reasons for testifying at Mr. Berry’s trial through being called by the Crown. The fact Mr. Jovanovski pleaded guilty to manslaughter and received a particular sentence is only relevant in assessing Mr. Jovanovski's credibility. [Emphasis added by Court of Appeal]

38 The trial judge repeated this instruction in essentially the same terms in his charge to the jury. Indeed, he reinforced it by adding the following:

Mr. Jovanovski may have had [a] great number of reasons for pleading guilty and any number of reasons for testifying for the Crown at Mr. Berry’s trial. He may have pleaded guilty so he could get out of jail. He may have pleaded guilty because he took responsibility for his actions. It is for you to decide how much or little weight you put on Mr. Jovanovski’s guilty plea in assessing his credibility. Remember, his guilty plea has zero relevance in your determination of whether Mr. Berry is guilty of any offence. [Emphasis added by Court of Appeal]

39 These sharp and clear-cut directives reminded the jury that Jovanovski may well have had his own motives for the plea and for giving the evidence he gave, while at the same time leaving no doubt that the jury was not to use the evidence of the guilty plea to determine any issues of guilt or innocence, but only for purposes of assessing the credibility of Jovanovski's evidence.

40 In addition, the trial judge provided a strong Vetrovec-like charge that was to the appellant’s advantage in terms of the jury’s assessment of Jovanovski’s credibility and evidence. In this portion of the charge, he directed the jurors to consider whether Jovanovski had a motive to be untruthful or a reason to downplay his involvement and exaggerate the appellant's role. He told them there was good reason to look at Jovanovski’s evidence “with the greatest care and caution” and that it would be dangerous for them to rely on that evidence without confirmation from some other source.

41 In view of the foregoing, the jury could not have been confused or left in any doubt about the two important features of Jovanovski’s guilty plea and sentence from the defence point of view: first, that the evidence could not be used for the purpose of determining the appellant’s guilt or innocence, but only for the purpose of assessing his credibility; and secondly, that Jovanovski may have had a motive to fabricate his evidence because he had received favourable treatment in his own case, in exchange for his testimony against the appellant.

42 The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of the dynamics of a trial is a discretionary task for which trial judges are particularly well-suited. Their decisions in that regard are entitled to deference. See, for example, R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 110. Absent an error of law or principle, a material misapprehension of the evidence, or a palpable and overriding error of fact in the exercise of that discretion, there is no basis for an appellate court to interfere.

[27] In Barreira, I concluded, at para. 23, that when weighing the probative value against the prejudicial effect, “it is my opinion that the jury must be able to assess the credibility of Ashley and Jennifer and their criminal records assist in this assessment – see section 12 of the Canada Evidence Act; Berry, at para. 41; and P.C., at paras 40-46. Their convictions do not list any accused as being responsible for the murder of Mr. Johnson and this lowers any prejudicial effect”. An essential fact underlying my reasoning was that the convictions themselves do not indicate or name which accused was responsible for the murder.

[28] The defence argues that the court should prevent cross-examination on convictions which the court determines are without a legal basis. The defence relies on R. v. Stratton, 1978 CanLII 1644 (ON CA), 21 O.R. (2d) 258; 90 D.L.R. (3d) 420 (C.A.). Stratton is a case dealing with convictions from foreign proceedings. In that case, the court held that the accused is entitled to explain the circumstances surrounding the conviction.

[29] Prior convictions and the circumstances leading to those convictions are relevant to the credibility of the witness – see Canada Evidence Act, s. 12; R. v. Cullen (1989), 1989 CanLII 7241 (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.); R. v. Burgar, 2010 ABCA 318. A non-accused witness may generally be cross-examined on the conduct leading to a conviction – see R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141, 21 C.R. (5th) 178 (Ont. C.A.). However, the witness may not be cross-examined on whether her evidence was accepted in prior proceedings, because that is irrelevant – see R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63, 138 C.C.C. (3d) 340 (C.A.).

[30] In R. v. Rowbotham (No. 5) (1977), 1977 CanLII 3351 (ON SC), 2 C.R. (3d) 293 (Ont. Gen. Sess. Peace), Borins Co. Ct. J. held that a witness may, upon cross-examination, be asked any questions concerning his antecedents, associations or mode of life, which, although irrelevant to the testimony given in chief or to any issue in the case, would be likely to discredit his testimony or degrade his character. The relevancy principle applies to cross-examination. The trial judge may disallow questions that are clearly vexatious, irrelevant, remote, or of such a nature as to not seriously affect present credibility.

[31] Therefore, it must be asked: Are the facts, as found by Parayeski J. and underlying Jennifer’s conviction, relevant to a material issue at trial?

[32] In R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183, at para. 22 (Ont. C.A.), the Court stated, “Evidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material to the proceedings.” Put differently, evidence is relevant where it has some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence – see R. v. Arp (1998), 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321, at p. 338. The threshold for relevance is not high – see R. v. Candir, 2009 ONCA 915, at para. 48.

[33] Even so, in R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 7 C.R. (4th) 117 (SCC), at pp. 137-140, the Supreme Court has emphasized that defence evidence should not be excluded simply because its probative value is outweighed by the prejudice it could cause; it can be excluded only where its probative value is substantially outweighed by the prejudice it could cause. This more exacting standard accords with the longstanding belief that it is better to obtain a wrongful acquittal than a wrongful conviction, so the accused should receive the benefit of every doubt, including in the application of rules of evidence. The accused must be able to make full answer and defence.

[34] Evidence is prejudicial where it operates improperly – see R. v. S. (D.G.), 2013 MBCA 69, at para. 25. One way in which evidence may be prejudicial is the tendency of jurors to assign it more weight than it deserves. As Watt J.A. has stated, “Prejudice is a surrogate for proof”: R. v. Luciano, 2011 ONCA 89, at para. 232.

[35] In R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1, 18 C.R. (5th) 219, at paras. 34-35 (Ont. C.A.), Rosenberg J.A., on behalf of the Court of Appeal, was concerned with the admissibility of reputation evidence. He suggested that a court should be wary of five potential prejudice pitfalls (adapted largely from Seaboyer, at para. 45, which in turn borrowed from McCormick’s Handbook of the Law of Evidence, 2d ed. (St. Paul, Minn.: West, 1972) at pp. 438-440):

1. The danger that the evidence will arouse the jury’s emotion of prejudice, hostility or sympathy;
2. The danger that the proposed evidence and any evidence in response will create a side issue that will unduly distract the jury from the main issue in the case;
3. The danger that the evidence will consume an undue amount of time;
4. The danger of unfair surprise to the opponent who has no reasonable grounds to anticipate the issue and was unprepared to meet it; and
5. The danger that the evidence will be presented in such a form as to usurp the function of the jury.

[36] Also relevant is the fact that this is a joint trial. Evidence that may assist one accused may prejudice another. In R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213, 23 C.R. (6th) 98 (Ont. C.A.), at paras. 106-107, Rosenberg J.A. outlined the balancing process that is involved:

106 … [S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.

107 In deciding whether to admit evidence on behalf of one accused of the co-accused’s disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.

[37] In R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, 30 C.R. (5th) 346 (Ont. C.A.), Doherty J.A. discussed the duty to balance the rights of a co-accused in a joint trial, at para. 111:

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused’s right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at p. 497-98; R. v. Pelletier (1986), 1986 CanLII 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. In Crawford, supra, Sopinka J. said, at p. 498:

I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and, in particular, other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case, in that the conflicting rights are protected under the same section of the Charter.

Application of Law to Facts

[38] The usual rule is that a witness can be cross-examined as to criminal convictions. This evidence can be led by the party calling the witness – see R. v. Boyko (1975), 28 C.C.C. (2d) 193 (B.C.C.A.), at pp. 203-204. This evidence is normally only relevant to the witness’ credibility.

[39] In cases where a co-accused or accomplice pleads guilty or is found guilty, the guilty plea or conviction is only relevant to the co-accused or accomplice’s credibility; the plea or conviction has no relevance to whether the accused is guilty of any offence, and is not admissible against the accused in determining his guilt – see P.C., at paras. 40-46 and Berry, at paras. 33-42.

[40] It would seem to follow that a finding of not guilty of a co-accused by another court would, in most circumstances, have little probative value in the assessment of the guilt or innocence of another accused. This is especially true without the knowledge of exactly what evidence was presented at the co-accused’s trial.

[41] If Jennifer is asked about her conviction for accessory after the fact to murder under the rubric that it is relevant to her credibility, then it appears open to her in chief, and certainly in cross-examination, to explain the circumstances surrounding her conviction – see Stratton and Miller.

[42] The circumstances of her conviction were that the Crown was unable to prove the guilt of Joshua, Brandon and Louis but was able to prove that Chad was guilty of murder. Jennifer was convicted of accessory after the fact to murder by assisting Chad to get married. No adverse inference can be drawn against Chad himself for getting married in these circumstances.

[43] The legal result is that the finding of not guilty of murder by three of the accused and the finding of guilty of murder by Chad by Parayeski J. has no probative value at this trial. Its only relevance relates to the credibility of Jennifer. Once the full circumstances of Parayeski J.’s finding of facts are provided to the jury, it is my opinion that there will be very little impact on Jennifer’s overall credibility and accordingly the conviction, in combination with the circumstances, will have little overall probative value.

[44] However, the introduction of the conviction of accessory after the fact to murder of Jennifer in combination with all of the circumstances has significant prejudicial value. Referring to the five dangers outlined in Clarke, there is a real danger that the proposed evidence will create a side issue that will distract the jury from the main issue in this case. The jury will be left to speculate as to what evidence was called at the Dagenais trial and whether it was the same, more, or less than the evidence they heard at this trial. There is a danger that the function of the jury will be usurped once jurors discover another judicial officer has made certain findings of fact and law on some unknown basis.

[45] Further, while there is little or no probative value regarding Parayeski J.’s judgment with respect to this trial (for reasons outlined), there is overwhelming prejudice to Chad. Justice Parayeski, in finding Jennifer guilty of accessory after the fact to murder, found that Chad committed murder and that Jennifer knew it or was willfully blind to that fact. Chad was not a party to Jennifer’s proceedings and had no opportunity to defend the allegations. Evidence of Parayeski J.’s judgment being led by anyone at this trial has the real potential to deprive Chad of his right to a fair trial.

[46] Accordingly, balancing the rights of all the accused and in order to preserve the overall fairness of the trial, as required by Suzack and Pollock, I find that the conviction of Jennifer, and related circumstances, for accessory after fact to murder, has little to no probative value but has an overwhelmingly prejudicial effect to Chad. The conviction has a further prejudicial effect to the Crown with reference to three of the accused but benefits the Crown in an unfair way with respect to Chad.

[47] Excluding the conviction of Jennifer and the related circumstances gives Joshua the ability to make full answer and defence through calling Jennifer in his defence, without risking the hit to credibility that introducing a conviction for accessory after the fact to murder could cause. As well, this exclusion removes the prejudice to Chad that would otherwise substantially outweigh the limited or lack of probative value of this evidence – see Seaboyer, at pp. 137-140. This result achieves the proper balancing act as described by Pollock and Suzack. Both Joshua and Chad’s right to a fair trial are preserved by this ruling, while there is no adverse effect upon any of the four accused by proceeding in this way. In other words, no interest of one accused has been sacrificed in favour of one or more of the others. See Suzack at para. 113.

[48] My earlier decision regarding the admissibility of Jennifer’s conviction for accessory after the fact to murder is reversed, given the additional circumstances argued before me at this time.

Conclusion Regarding Issue #1 – Defence Application Excluding Evidence of Jennifer Dagenais’ Conviction for Accessory After the Fact to Murder

[49] Accordingly, the probative value of the conviction, sentence and/or the circumstances surrounding the conviction of accessory after the fact to murder regarding Jennifer Dagenais is substantially outweighed by their prejudicial effect. The conviction, sentence, and underlying finding of facts as outlined by Parayeski J. cannot be adduced by any party if or when Jennifer is called as a witness in this trial.

Issue #2 – Defence Corbett Application Excluding Convictions of Joshua Barreira

[50] Joshua Barreira has a significant criminal record. The defence seeks to prevent cross-examination on various portions of his criminal record, in particular those convictions relating to weapons and violence as an adult as well as the accused’s youth record in its entirety.

[51] Joshua has a significant youth criminal record extending from 2003 until 2006. Joshua, pursuant to section 51 of the Youth Criminal Justice Act, S.C. 2002, c. 1 [YCJA], was prohibited from possessing weapons.

[52] As an adult, Joshua was convicted in 2006 of possessing a loaded prohibited or restricted firearm and possessing a firearm or ammunition contrary to a prohibition order along with drug offences and breaching bail. Joshua received a two-year sentence to be followed by a two-year probation period.

[53] On February 27, 2007, the accused was paroled on the two-year sentence above. In May of 2008, Joshua was arrested for conspiracy to commit murder. The charge was later changed to counsel another person to commit murder. Counsel agreed that the offence consisted of a phone call made by Joshua on March 9, 2007 while Joshua was on parole. On April 4, 2008, Joshua was recommitted as a parole violator. Accordingly, it is agreed and established that Joshua committed the counsel to commit murder offence while he was on parole for the weapons, drugs and breach of bail charges.

[54] On March 9, 2009, Joshua was convicted of counsel to commit murder and received one day in addition to ten months’ pre-sentence custody.

[55] Joshua’s criminal record continues onward until February 13, 2013.

[56] It is alleged that on November 30, 2013, Joshua, along with the other three co-accused, committed first degree murder. It is during this murder trial, that Joshua seeks an order to edit his criminal record by removing the YCJA convictions and convictions for weapons and violence.

[57] As indicated, the Crown’s theory is that Chad shot Mr. Johnston and the three other accused were parties to the planned and deliberate murder. It is not alleged that Joshua shot Mr. Johnston.

[58] The Crown has tendered in evidence, at this trial, two statements made by Joshua to the police wherein Joshua agrees that he sells drugs but claims that he is not a violent person and is not someone who would carry out a murder.

Law

[59] The leading case is R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385. That was a case where the accused was charged with first degree murder while he was on parole for a charge of non-capital murder. The accused testified at trial. The Supreme Court of Canada held that the accused could be properly cross-examined on his murder conviction with an appropriate jury instruction.

[60] Chief Justice Dickson, in Corbett, indicated at paras. 22-24, 33–35, 37, 47-51, reproduced below as follows:

22 This rationale for s. 12 [of the Canada Evidence Act] 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 convictions, is a relevant fact in assessing the testimonial reliability of the witness.”

23 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.”

24 An American court identified the rationale behind a similar rule in the following language:

What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, “he takes his character with him....” Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving “dishonesty and false statement.”

State v. Duke, 123 A.2d 745 (N.H. 1956), at p. 746; quoted with approval in State v. Ruzicka, 570 P.2d 1208 (Wash. 1977), at p. 1212).

33 It is my view that on the facts of the present case, a serious imbalance would have arisen had the jury not been apprised of Corbett's criminal record. Counsel for Corbett vigorously attacked the credibility of the Crown witnesses and much was made of the prior criminal records of Marcoux and Bergeron. What impression would the jury have had if Corbett had given his evidence under a regime whereby the Crown was precluded from bringing to the jury’s attention the fact that Corbett had a serious criminal record? It would be impossible to explain to the jury that one set of rules applies to ordinary witnesses, while another applies to the accused, for the very fact of such an explanation would undermine the purpose of the exclusionary rule. Had Corbett's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. It cannot be the case that nothing short of this entirely misleading situation is required to satisfy the accused’s right to a fair trial.

34 There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.

35 In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

37 One can now add on the accused’s side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial.

47 If risk that the jury might misuse evidence were enough to render such evidence inadmissible in all cases, then in each of the situations just identified, the evidence would have to be excluded. Yet the risk of error inherent in depriving the jury of such information is so strong that the balance is struck by allowing the evidence to be received, subject to the trial judge's discretion, but at the same time insisting on a careful direction from the trial judge as to the permissible conclusion or inferences which may be drawn. As it was put in an American decision (State v. Anderson, 641 P.2d 728 (Wash. Ct. App. 1982), at p. 731, per Durham J.), “If we are to continue in our belief that a trial by a jury of 12 peers offers the fairest determination of guilt or innocence, then we must credit the jury with the intelligence and conscience to consider evidence of prior convictions only to impeach the credibility of the defendant if it is so instructed.” Similarly, in State v. Ruzicka, supra, at p. 1214, Hamilton J. stated: “We are not convinced that juries either cannot or willfully do not follow the court’s instructions to use evidence of a defendant’s prior criminal record only in weighing the defendant’s veracity on the witness stand.”

48 It is worth noting as well that it would be quite wrong to view this aspect of s. 12 and evidence in relation to prior convictions in isolation. Judicial decisions have carefully circumscribed the extent to which the Crown may use prior convictions. It has been held, for example, that the accused may be examined only as to the fact of the conviction itself and not concerning the conduct which led to that conviction: R. v. Stratton, supra, at p. 467; R. v. Laurier (1983), 1 O.A.C. 128; Koufis v. The King, supra. Similarly, it has been held that an accused cannot be cross-examined as to whether he testified on the prior occasion when convicted in order to show that he is one who was not believed by a jury on a previous occasion: R. v. Geddes (1979), 1979 CanLII 2854 (MB CA), 52 C.C.C. (2d) 230 (Man. C.A.) The Crown is not entitled to go beyond prior convictions to cross-examine an accused as to discreditable conduct or association with disreputable individuals to attack his credibility: R. v. Waite (1980), 1980 CanLII 2876 (NS CA), 57 C.C.C. (2d) 34 (N.S.S.C. App. Div.), at pp. 45-46; R. v. Davison, DeRosie and MacArthur, supra, at p. 444; R. v. MacDonald (1939), 1939 CanLII 108 (ON CA), 72 C.C.C. 182 (Ont. C.A.), at p. 197. Unless the accused takes the stand, the Crown is not permitted to adduce evidence of prior convictions, even if the accused has launched an attack on the character of Crown witnesses: R. v. Butterwasser, [1948] 1 K.B. 4 (C.C.A.). It has been held that an accused may be cross-examined only as to “convictions” strictly construed and that there can be no cross-examination where the accused was found guilty and granted a conditional discharge, conditions subsequently having been fulfilled: R. v. Danson (1982), 1982 CanLII 1916 (ON CA), 66 C.C.C. (2d) 369 (Ont. C.A.).

49 These limitations on the use of prior convictions, together with the discretion recognized by the reasons of La Forest J., demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of prejudicing an accused’s trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question. Within this context, it cannot be said that s. 12 of the Canada Evidence Act operates in such a way as to deprive the accused of the right to a fair trial.

VI. Does a Trial Judge Have the Discretion to Preclude Cross-examinations as to Prior Convictions?

50 I agree with my colleague, La Forest J., that basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever-increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion.

51 I agree with La Forest J. that the trial judge has a discretion to exclude prejudicial evidence of previous convictions in an appropriate case.

[61] Justice La Forest, in his dissent in Corbett, listed four factors that are relevant but not exhaustive factors in the exercise of judicial discretion – see paras. 152-161.

[62] Justice Smith in R. v. Gill, 2008 BCSC 96, at para. 11, summarized the “La Forest factors” in Corbett as follows:

11 The majority agreed that the factors identified by La Forest J., dissenting (who would have excluded cross-examination of Corbett on his record), were useful. The same factors have been referred to consistently in the authorities since Corbett. Those factors, bearing on the probative value and prejudicial effect of a previous conviction, are:

1. the nature of the previous conviction (La Forest J. referred to Gordon v. U.S., 383 F. 2d 936 at 940 (1967), which states that acts of deceit, fraud, cheating or stealing will reflect adversely on a person's honesty and integrity, while acts of violence generally have little or no direct bearing on honesty and veracity);

2. the similarity of the previous conviction to the conduct for which the accused is on trial (the more similar the prior offence, the greater the prejudice harboured by its admission);

3. the remoteness or nearness in time of the previous conviction to the present charge (and whether the accused has led a legally blameless life for a period of time since the conviction); and

4. the risk of presenting a distorted picture to the jury (which may arise where there has been a deliberate attack upon the credibility of a Crown witness and where the resolution of the case boils down to a credibility contest between the accused and that witness).

See also R. v. R.J.B., 2014 BCSC 2627, at para. 6; R. v. Pattison, 2011 BCSC 1408, at para. 17; and R. v. Batte, 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498, 34 C.R. (5th) 263 (Ont. C.A.) at para. 48.

[63] In R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, 155 D.L.R. (4th) 13, Lamer C.J.C. outlined the test and procedure to be taken when assessing a Corbett application. I reproduce paras. 1, 9-11 below:

1 In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, a majority of this Court held that s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (formerly R.S.C. 1970, c. E-10), conferred a discretion on the trial judge to exclude all or part of an accused’s prior criminal record, where the probative value of that record is outweighed by its prejudicial effect. In this case, the Court must decide at what stage in the trial proceedings an accused is entitled to a ruling on his or her application to have all or part of the record excluded (a so-called Corbett application).

9 In my view, the situation can be resolved by holding a voir dire before the defence opens its case. In this voir dire, the defence will reveal the evidence which it intends to call, either through calling witnesses, or through agreed statements of fact. The trial judge can then consider the factors set out in Corbett (the nature of the previous convictions, the time since the previous convictions, and any attacks made on the credibility of Crown witnesses) in the context of the defence evidence, and make a final ruling on the Corbett application.

10 I would emphasize that the purpose of this voir dire is not “defence disclosure”. It creates no independent rights in the Crown, and, therefore should not be treated as an excuse for the Crown to deeply probe the case for the defence, as the defence is entitled to do to the Crown’s case at a preliminary inquiry. The point is to provide the trial judge with the information he or she needs to make an informed decision, but the Crown has no right to require more than that. There may even be cases in which the trial judge believes he or she has sufficient information to make a decision without such disclosure, such as where the nature of the defence is fairly clear or has otherwise been disclosed (e.g. an alibi), or where the outcome of the application is readily apparent without this information. In those cases, disclosure need not be given.

11 I should make it clear that this is not a form of “Stinchcombe in reverse”. The accused always retains the right to lead evidence which was not disclosed at the voir dire. However, if the accused fails to disclose evidence, and the trial judge believes that the undisclosed evidence would have had a material impact on the Corbett application, he or she can change his or her ruling when that evidence is lead. [sic]

[64] In R. v. Clarke, 2014 ONCA 777, at paras. 4-11, the Court of Appeal outlined that ultimately it is in the trial judge’s discretion as to how the Corbett application is disposed of. The case also provides a useful example as to how that discretion is to be applied in a particular case:

4 The appellant has a lengthy criminal record, which the trial judge laid out in his ruling. The appellant argues that the trial judge erred by refusing to grant his Corbett application concerning his prior robbery convictions. He says: “at a minimum, the trial judge should have removed the convictions that are similar to the charges for which [the appellant was] being tried”, particularly his prior convictions for robbery.

5 A Corbett ruling is discretionary, and an appellate court ought not to intervene “absent error in principle, a misapprehension of material facts, or an exercise of the discretion which, in the totality of the circumstances, must be regarded as unreasonable”: R. v. Mayers, 2014 ONCA 474, at para. 3. There is no basis for appellate intervention in this case.

6 The trial judge recognized his obligation to balance the probative value of the record against the prejudicial effect of its admission in order to ensure a fair trial. He noted, correctly, that the record contained a number of offences involving dishonesty that would be “highly probative on the issue of the likely truthfulness of the accused.”

7 In the credibility contest between Mr. Joseph and the appellant, the trial judge noted that Mr. Joseph's credibility had been “vigorously challenged” on the basis of his involvement in the string of robberies leading up to the charges in the indictment.

8 The trial judge was troubled about admitting evidence of the appellant's past robbery convictions, echoing the Supreme Court in Corbett by observing that: “I am naturally most chary of admitting evidence of similar crimes.” He considered editing the robbery convictions out of the record, but concluded that “doing so would significantly minimize both the seriousness and the persistence of the record, important considerations when assessing credibility.” He added: “to omit the robberies in this case would overwhelmingly reduce the seriousness of the record, and create an artificial gap in it, from 1992 to 1999, followed by a few minor convictions.” The remaining record, after omitting the robberies, would have had the effect of deleting any indication of crimes of violence apart from the appellant’s youthful assault conviction in 1991.

9 The trial judge’s overriding consideration was that, without the inclusion of evidence of the appellant’s prior robberies and associated convictions, “the jury would have a false basis to consider the competing versions of the events [in] issue if they are left to believe that the accused, unlike Mr. Joseph, had an unblemished past.” He pointed out that: “without involvement in the robbery, there is no basis to conclude that the accused was involved in the murder.” This favoured the introduction of the appellant’s whole record.

10 The appellant takes particular aim at two lines in the ruling in which the trial judge states: “I acknowledge that counsel for the accused did not broaden the attack on Mr. Joseph’s credibility to an attack on his character in general. In this case, I see little significance to this distinction.” We read this not as an erroneous basis for admitting the robbery record, but simply as an acknowledgement that vigorous cross-examination on robbery by its very nature implicates the character of the witness, not only his credibility. In our view the trial judge was fully alive to the distinction between credibility and character.

11 The trial judge concluded that the balance between prejudice and probative value obliged him to admit the robbery convictions, but he took steps to tailor the ruling and to blunt its impact from the viewpoint of similar act evidence, by excluding the appellant’s firearm, weapons and disguise convictions associated with his 1994 robbery convictions. In his view, this would minimize the extent of the similarities between those offences and the one in the indictment, which might “otherwise take on the trappings of near signature.” He also excluded the weapons offences from the appellant’s 1991 conviction. We see no reversible error in this approach or in the trial judge’s reasoning in this regard. Indeed, we agree with it.

[65] In R. v. Saroya (1994), 1994 CanLII 955 (ON CA), 36 C.R. (4th) 253, 76 O.A.C. 25, the Ontario Court of Appeal provided another example of the balancing exercise between probative value and prejudicial effect. The court held, at paras. 10-14:

10 The balancing exercise is a particularly difficult one in this case. The relevant factors point to both probative value and prejudice. The accused's prior record discloses a conviction for attempted murder in 1988, some four years prior to the trial at issue here. That was his only prior conviction. A conviction for attempted murder cannot be dismissed as having little probative value on the credibility of a witness. Although it is not a so-called offence of dishonesty, which may be probative of deception, attempted murder is such a serious offence that, in itself, it may be taken to indicate that the prospect of a conviction for perjury is unlikely to keep the witness in line. More significantly, it would be open to a jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life.

11 On the other hand, of course, a conviction for attempted murder shows a capacity for violence against the person, and, on a charge of aggravated assault and assault causing bodily harm invites an inference of guilt through disposition. Not only is the offence for which the appellant was previously convicted very similar to the one that he was facing at trial, but, being of a more serious nature, it would logically support an inference that if the appellant once attempted to kill someone, he would not likely hesitate to commit the types of assaults that he was alleged to have committed.

12 Since the conviction for attempted murder was the appellant’s sole prior conviction, this is not a case where one could conveniently excise from his record the prejudicial entry and leave the jury with some appreciation of the diminished credibility of the witness in light of past convictions.

13 In the end, guidance comes from the Corbett decision. In that case, the majority of the Supreme Court ruled in favour of inclusion, in conformity with s. 12 of the Canada Evidence Act, of a prior murder conviction when the accused was facing a charge of first degree murder. Although the potential for prejudice was recognized as significant, the Supreme Court held that the potential prejudice could be displaced by a proper instruction to the jury about the impermissible use of the prior record. It is conceded that such proper instruction was given in the present case. As in Corbett, we are of the opinion that the deletion of the appellant’s record would leave the jury with incomplete and therefore incorrect information about his credibility as a witness. To deprive the jury of that information in the present case, would hinder the jury’s ability to correctly appreciate the facts. On balance, we think that the probative value of the appellant’s criminal record of the question of his credibility as a witness outweighs the potential risk that the jury might use that prior conviction as evidence that the appellant is the type of person likely to have committed the offences with which he was charged.

14 For these reasons, we are of the opinion that the criminal record was properly admitted as evidence.

[66] The onus is on the accused to establish that the criminal record should be edited. Ongoing criminal conduct is a relevant factor in the editing process. In R. v. Madruson, 2005 BCCA 609, Ryan J.A. indicated, at paras. 27-32, 44-54:

27 In any event, I do not agree that the reasons of the trial judge in the case under appeal reveal a misunderstanding of the test that she was to apply. The trial judge was simply repeating the language of the majority in Corbett. At p. 692 Dickson C.J.C. said this:

One can now add on the accused's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial. [emphasis added by Ryan J.A.]

28 The point is that the Canada Evidence Act permits cross-examination of the accused on his criminal record if he chooses to testify. The Corbett case interpreted the section as creating a discretion in the trial judge to prohibit such a cross-examination if a mechanical application of the rule would undermine the right to a fair trial. This means that the onus is on the appellant to show that cross-examination on his record would likely produce this unfairness. As Doherty J.A. said in R. v. N.A.P. (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70, 8 C.R. (6th) 186 at para. 20 (Ont. C.A.):

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. [emphasis added by Ryan J.A.]

29 I would not accede to the first point made by the appellant.

30 Next, the appellant submitted that the trial judge erred in her application of three of the Corbett factors. First, the appellant said that the trial judge misanalyzed the nature of the convictions by concluding that the prior convictions reflected on the honesty and integrity of the appellant because they involved stealing and offences against property.

31 I cannot agree. What the trial judge actually said was the record involved such offences, “for the most part”. She went on in the next paragraph to set out the exceptions. She cannot be said to have erred in examining the nature of the convictions.

32 Next, the appellant submitted that the trial judge erred in finding that the convictions were not remote. Counsel noted that some of the convictions were 16 years old. This submission ignores the point that the trial judge was making - that the appellant’s criminal conduct has been virtually continuous since his first conviction. This is not an error. In Corbett, Dickson C.J.C. said this about repeated contempt for the law at p. 686 of his reasons for judgment:

An American court (State v. Duke, 123 A.2d 745 (N.H. 1956) identified the rationale behind a similar rule in the following language:

What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, “he takes his character with him …”. Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving "dishonesty and false statement." [emphasis added by Ryan J.A.]

The Second Ground of Appeal

44 The second question posed by counsel for the appellant was whether the trial judge erred in failing to edit the appellant's criminal record. The trial judge said only that editing was not suitable because, “it is the very convictions which are most relevant to the issue of credibility which defence sought to be excluded. In my view, this is not appropriate in this case.” (Para. 14.)

45 In these last comments the trial judge was referring to the submission of defence counsel at trial that the appellant's four robbery convictions be removed from the record.

46 Counsel for the appellant in this Court went further than that. He submitted that the trial judge should have edited the appellant’s criminal record to exclude the most prejudicial convictions and the least probative; namely, the more dated convictions and those that do not reflect on credibility. He would limit the cross-examination to five convictions - all relating to theft or possession of stolen property. The rest - anything prior to 1999 - the old theft offences, the robberies, and the assault offences would be expunged.

47 I cannot agree that the record ought to have been altered that drastically. To begin with, none of this was suggested to the trial judge. Not only that, but had the trial judge excluded those convictions the jury would have been left with a completely distorted view of the appellant's lengthy history of contempt for the law. If the jury were to engage in forbidden reasoning, they might just as easily look to the record to conclude that the appellant might be a thief, as he said he was, but certainly not a robber.

48 The problem facing the trial judge was that the very offences that counsel asked her to delete were highly relevant to the appellant's credibility. This issue was addressed in a case cited by La Forest J. in Corbett at p. 741:

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 [v. United States, 383 F. (2d) 936 (1967)], 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. [Italics added by La Forest J., underlining added by Ryan J.A.]

49 That is the situation that pertained in the case at bar.

50 Trial counsel in this case ought to have suggested that some of the robbery offences and some of the violent assault and weapons offences be edited from the record. He should have explained that his defence turned on whether he had assaulted Ms. Lam and that for that reason the record for robbery and assaults should be at least pared down.

51 In Corbett, La Forest J. made this observation at p. 726:

As Ratushny points out, the trier of fact is entitled to infer that because the accused committed criminal acts in the past he or she is now more likely to lie, but that same trier of fact is not entitled to infer therefrom that the accused is also more likely to have committed the evil act for which he is now on trial (supra, at pp. 336-37). Ironically, however, as a matter of logic and human experience which are, after all, our touchstones in the present inquiry, the probative value of such evidence to the latter question (of guilt) appears to be far more prepossessing.

52 This observation is powerful. It lies at the heart of the decision that s. 12 of the Canada Evidence Act must give a trial judge the discretion to exclude portions of an accused’s record on the basis of trial fairness. While the majority in Corbett chose to place their faith in the ability of jurors to understand and follow the instructions of a trial judge who will tell them that they must place the common sense inference aside, they recognized that in some cases trial fairness will require that the record, or part of it, not go before the jury.

53 The discretion given to a trial judge in Corbett is directed not only to determining whether the prosecution should be prohibited from cross-examining the accused on his or her criminal record, but is also directed to whether the record ought to be edited. In the case under appeal, in my view, the trial judge did not give proper consideration to editing the record. Given the nature of the offence with which the appellant was charged, the nature of the defence put forward, and the sheer size of the criminal record, I am of the view that the trial judge erred in failing to consider whether she ought to edit the record to remove some of the offences which, by their nature, touched on the issues the jury had to decide. In my view, had the trial judge turned her mind to the question whether trial fairness would have been compromised by placing the entire record before the jury, she would have been driven to the conclusion that the number of robberies and assaults should have been limited in number, perhaps, as the court in Gordon, supra, suggested, to a single conviction for each of the similar offences. This approach would have left for the jury a record which demonstrated a continuing disregard for the law, a record which contained offences of dishonesty while at the same time not overwhelming the jury with similar offences to the one before them.

54 Without such editing, I am of the view that the cross-examination of the appellant was unfair.

[67] Regarding the Crown’s argument that the accused’s criminal convictions for violence should be admitted to rebut the accused’s claims that he is not a violent person in statements to the police that the Crown itself introduced, the Crown cannot be permitted to initially introduce good character evidence regarding the accused with the purpose to later introduce evidence to rebut this evidence. In R. v. Bricker (1994), 1994 CanLII 630 (ON CA), 71 O.A.C. 383, 90 C.C.C. (3d) 268 (Ont. C.A.), Laskin J.A. held, at para. 18 :

In my respectful view the trial judge was wrong in ruling that the appellant had put his character in issue. Admitting to having a criminal record is not an assertion of good character: see Regina v. St. Pierre (1974), 1974 CanLII 874 (ON CA), 17 C.C.C. (2d) 489 (Ont. C.A.). Such an admission is quite different from testifying as to not having a criminal record, which, implicitly, is a statement of good character: see Morris v. The Queen, 1978 CanLII 168 (SCC), [1979] 1 S.C.R. 405. The appellant referred to the Bible in his evidence in-chief in order to explain why he chose to affirm rather than swear the oath. Finally, the appellant’s evidence that he is a firm believer in honesty and forthrightness was brought out by the Crown in cross-examination. The prosecutor cannot compel an accused to put his character in issue and therefore a prosecutor cannot by his cross-examination adduce good character evidence in order to provide a basis for questioning an accused on his criminal record.

[68] In R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 216 O.A.C. 217, 213 C.C.C. (3d) 183 (Ont. C.A.), the Ontario Court of Appeal held, at para. 30:

Crown counsel’s further submission in its reply factum to the effect that because Mr. Truscott's statements are potentially admissible, the court can have regard to the statements even though they are not before the court is equally devoid of merit. If the Crown wishes to make certain out-of-court statements made by Mr. Truscott part of the proposed “fresh evidence” for the purposes of this Reference, it is free to attempt to do so. We would add, although it should be unnecessary to do so, that Mr. Truscott does not put his character in issue if the Crown chooses to adduce statements made by Mr. Truscott which amount to assertions of good character: see R. v. Bricker (1994), 1994 CanLII 630 (ON CA), 90 C.C.C. (3d) 268 at 278 (Ont. C.A.), leave to appeal to S.C.C. refused (1994), 92 C.C.C. (3d) vi, [1994] S.C.C.A. No. 331; R. v. Wilson (1999), 1999 CanLII 4245 (MB CA), 136 C.C.C. (3d) 252 at 265 (Man. C.A.), leave to appeal to S.C.C. refused (1999), 139 C.C.C. (3d) vi, [1999] S.C.C.A. No. 337 (S.C.C.).

[69] Regarding youth records, there are a number of Ontario Superior Court decisions where judges have not allowed cross examination on youth records pursuant to section 12 of the Canada Evidence Act due to the unique policy objectives outlined in the YCJA. In the leading case of R. v. Sheik-Qasim (2007) 2007 CanLII 52983 (ON SC), 230 C.C.C. (3d) 531, [2007] O.J. No. 4799 (Q.L.) (Ont. S.C.J.), Malloy J. held, at paras. 23-25:

23 Third, even if it was generally appropriate to allow cross-examination in the absence of a youth court judge’s order authorizing production of the records, I would not have permitted the cross-examination in this case. I do not interpret the words “subject to s. 12 of the Canada Evidence Act” in s. 82 as creating a broad exception to the entire operation of the YCJA. Rather, the exception is only to the protection afforded under s. 82 itself, which is that upon completion of a youth court sentence, the young offender is deemed (subject to certain exceptions) not to have been found guilty of the offence. The extent of the protection with respect to access to records under s. 119(2) is different. I have no knowledge as to the youth court record of the witness in this case. However, for the purposes of illustrating this principle, I will assume that he was found guilty of an indictable offence under the YCJA. Under s. 119(2)(h), the access period for such an offence would expire five years after the completion of the sentence. However, under s. 82, the young person is deemed as of the date of completion of the sentence to have not been convicted at all. Thus, there is a five year window, during which time defence counsel could cross-examine on the youth court record, even though under s. 82 the young person would otherwise be deemed to have not been convicted of the offence.

24 Although I have not been advised of the details of this particular witness’s youth record, the Crown has disclosed that the access period under the YCJA has now expired. Although there are some other exceptions under the Act permitting access to records outside the access period (e.g. s. 123) none of those apply here. That being the case, the exception under s. 82 permitting cross-examination on the youth court record must also now be regarded as inapplicable. Interpreting s. 82 in any other manner would, in my view, run afoul of s. 128 of the YCJA which prohibits the use of a young offender record in any manner that would identify the young offender after the end of the s. 119 access period.

25 Accordingly, I denied the defence application and prohibited defence counsel from making any reference to the young offender record in the cross-examining this witness at trial.

See also R. v. Kanhai, 2010 ONSC 3776 and R. v. Hankey, [2008] O.J. No. 5267 (Q.L.) (Ont. S.C.J).

[70] A trial judge may exclude all or part of an accused’s criminal record as part of the discretionary process. An appeal court will not review the correctness of the decision. An appeal court will not interfere with the exercise of a trial court’s discretion unless there has been an error in principle or misapprehension of relevant evidence or if the exercise of discretion is unreasonable. See R. v. Brand (1995), 1995 CanLII 1540 (ON CA), 40 C.R. (4th) 137, 98 C.C.C. (3d) 477 (Ont. C.A.), R. v. Talbot, 2007 ONCA 81, at paras. 37, 38 and Clarke at para. 5.

Application of Law to Facts

[71] Regarding Joshua’s youth record, it is dated, stemming from 2003 to 2006. This period is from seven to ten years before the murder charges pertaining to the shooting of Mr. Johnston on November 30, 2013. Accordingly, this youth record is outside the five-year period outlined in Sheik-Qasam and the cases following it.

[72] Further, the youth record consists mainly of breach of court orders and drug trafficking charges, and these types of convictions are also represented in the adult record from 2006 to 2013. In my opinion, trial fairness does not require that the youth record be placed in front of the jury in addition to the adult record since they bear similar convictions – see Madruson, at para. 53 and Corbett, at para. 155.

[73] Accordingly, in my opinion, the youth record has probative value that is outweighed by its prejudicial effect and it will be edited out of Joshua’s criminal record. The Crown has conceded that the youth record should not be cross-examined upon.

[74] I reject the Crown’s argument that it is entitled to introduce the accused’s convictions for violence to rebut the accused’s claims in statements to police of being a non-violent person, statements the Crown itself introduced as evidence – see Truscott, at para. 30 and Bricker, at para. 18.

[75] Regarding the adult record, Joshua’s criminal conduct has been virtually continuous since his first adult convictions in 2006. The last entry is in 2013 in February, when the accused received a three-month jail term. (The shooting of Mr. Johnston occurred in November of 2013.) As indicated by Dickson C.J.C. in Corbett at para. 24 and Ryan J.A. in Madruson at para. 32, “lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, though the violations are not concerned solely with crimes involving ‘dishonesty and false statement’.”

[76] Regarding the convictions in June of 2006, there are two convictions relating to the possession of a firearm. One of them relates to being in possession of a firearm contrary to a court order. This conviction stands alongside three convictions for failing to comply with a recognizance plus a drug trafficking charge. The four convictions for failing to comply with court orders (in various ways) are suggestive of an “abiding and repeated contempt for laws” and court orders that the accused was “morally and legally bound to obey” (to borrow the language of Ryan J.A. in Madruson). Accordingly, the possession of a firearm contrary to a prohibition order is relevant to the accused’s credibility. I find that the probative value of this conviction outweighs its prejudicial effect. The possession of the loaded firearm charge on the same date, however, is a conviction of a related crime involving a firearm which may be edited out pursuant to the principles outlined in Corbett at para. 155 and Madruson at para. 53.

[77] Similar considerations apply to the counsel person to commit murder conviction in 2009. The circumstances, according to the records before me, are that Joshua was released on parole on the previously mentioned weapons charges, breach of recognizance charges, and a trafficking charge on February 27, 2007. On March 9, 2007, some ten days after being paroled, the accused committed the “counsel person to commit murder” offence and his parole was revoked on April 4, 2008 and Joshua was recommitted to custody as a parole violator. In May of 2008, Joshua was then charged with conspiracy to commit murder which was later amended to “counsel person to commit murder”. This set of circumstances clearly shows an abiding and repeated contempt for laws which Joshua was morally and legally bound to obey.

[78] I fully appreciate that this charge of “counsel person to commit murder” has the potential to create prejudice, due to its similarity to the current charge. However, the charge is not remote as it is part of a continuing pattern of criminal conduct and contempt for laws that has been ongoing Joshua’s entire adult life. I have carefully weighed the factors outlined by La Forest J. in Corbett as summarized previously. The offence of counselling murder while on parole for weapons and other offences is such a serious matter that, in itself, it may be taken to indicate that even the prospect of punishment for perjury is unlikely to keep the accused as a witness in line – see Saroya, at para. 10. As in Saroya, it would be open to the jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life. On balance, it is my opinion that the probative value outweighs the potential risk that the jury might use the prior conviction for counselling murder as evidence that the accused is the type of person likely to have committed the offences with which he is charged – see Saroya at paras. 10-14.

Conclusion Regarding Issue #2 – Defence Corbett Application to Exclude Convictions of Joshua Barreira

[79] The Crown will be permitted to cross-examine Joshua Barreira on his criminal record with the following edits:

1. The youth record will be deleted.
2. The conviction for possession of a loaded prohibited or restricted firearm (contrary to s. 95(1) of the Criminal Code), dated June 29, 2006, will be deleted from the criminal record. The other conviction on that date for possession of a firearm or ammunition contrary to a prohibition order will not be edited out, for the reasons outlined.

Order

[80] Jennifer Dagenais will not be cross-examined on her conviction for accessory after the fact to murder and she cannot be cross-examined as to any of the underlying facts contained in the judgment of Parayeski J. dated March 23, 2016.

[81] Joshua Barreira can be cross-examined on his criminal record except for the edits outlined in paragraph 79 above.

Skarica J.

Released: April 20, 2017