COURT FILE NO.: CR-15-4953 DATE: 2017-04-21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

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 20, 2017

REASONS FOR MID-TRIAL RULING – CORBETT APPLICATIONS TO EXCLUDE CRIMINAL CONVICTIONS OF BRANDON BARREIRA, CHAD DAVIDSON, AND RECONSIDERATION OF PREVIOUS CORBETT APPLICATION 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 (admitted to be Brandon Barreira and Joshua Barreira), as Chad Davidson approached the victim who was speaking to the fourth accused, Louis Rebelo (Louis). It is alleged by the Crown that the other three accused assisted Chad Davidson in a planned and deliberate murder.

[2] Joshua Barreira (Joshua) previously brought a Corbett application where I held that he could be cross-examined on his criminal record, including convictions for possession of a firearm or ammunition contrary to a prohibition order and counsel to commit murder. Counsel now wishes me to edit out the references to “firearm or ammunition” on the weapons charge (change it to “possession contrary to a court order”) and “murder” on the counselling charge (change it to “counsel to commit an indictable offence”).

[3] Counsel for Brandon Barreira (Brandon) and Chad Davidson (Chad) have also brought Corbett applications with reference to their criminal records.

ISSUES

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

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

[6] Should the edits requested by Joshua take place?

BACKGROUND FACTS FOR ALL ACCUSED

[7] Chad, Joshua, Brandon and Louis are charged with the first degree murder of Mr. Johnson on November 30, 2013.

[8] 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.

[9] 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.

[10] 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 that he is the man wearing the dark jacket, accompanying Chad, in the videos depicting the shooting.

[11] Brandon has also admitted to being one of the men on the videos accompanying Chad on the videos. Chad has admitted that he is the man wearing the red hoodie who can be seen on the videos holding a gun as the three men approach the victim, who is talking to the fourth accused, Louis. Louis has also admitted to be the man speaking to the victim, Tyler Johnson, on the video at the time of the shooting.

ISSUE #1 – DEFENCE CORBETT APPLICATION EXCLUDING CONVICTIONS OF BRANDON BARREIRA

FACTS

[12] Brandon Barreira has an adult criminal record and a youth record. The youth record is approximately a page long and consists of a variety of, what I consider to be, fairly minor offences. The adult criminal record consists of two fail to comply with recognizance convictions and a fail to comply with probation conviction. The defence concedes the accused Brandon can be cross-examined on these adult convictions. The defence seeks to prevent cross-examination on the accused’s youth record in its entirety. The youth record basically consists of drug possession offences, breaching recognizance and probation orders and an assault. The Crown opposes this application.

LAW

[13] The leading case is R. v. Corbett, [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.

[14] 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), 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), 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), 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), 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), 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.

[15] Justice La Forest, in his dissent in Corbett, listed four non-exhaustive factors that are relevant in the exercise of judicial discretion – see paras. 152-161.

[16] 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, 145 C.C.C. (3d) 498, 34 C.R. (5th) 263 (Ont. C.A.), at para. 48.

[17] In R. v. Underwood, [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] 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]

[18] 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.

[19] In R. v. Saroya (1994), 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.

[20] 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), 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.

[21] 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, R.S.C. 1985, c. C-5, due to the unique policy objectives outlined in the Youth Criminal Justice Act, S.C. 2002, c. 1 [YCJA]. In the leading case of R. v. Sheik-Qasim (2007), 230 C.C.C. (3d) 531, [2007] O.J. No. 4799 (Q.L.) (Ont. S.C.J.), Molloy J. held, at paras. 11-14, 21-25:

11 Part 6 of the YCJA deals with privacy interests, such as the publication of information about a young offender, the types of records that may be kept about young offenders, and the circumstances under which those records may be disclosed. Sections 114 to 116 of the Act stipulate the kinds of records that can be maintained and by whom. Section 124 provides that a young person may have access to his or her own record at any time. Sections 118 and 119 govern the disclosure of those records to others.

12 The starting point is s. 118, which stipulates the general rule that no person is permitted access to any of the records kept under sections 114 to 116 “except as authorized or required under this Act”. Section 119(1) then lists the individuals and circumstances in which access "shall" be given to s. 114 records (those kept by the youth justice court, review board or other court of a case brought before it) and “may” be given to section 115 and 116 records (those kept by the police and government records). Of significance for this case are ss. 119(1)(q) and (s), which include amongst those eligible to get access:

(q) an accused or his counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer and defence;

(s) any person ... that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is

(i) desirable in the public for research or statistical purposes, or

(ii) desirable in the interest of the proper administration of justice.

13 Section 119(2) sets out the period of time during which access to youth records may be obtained, which varies depending for the most part on the nature of the charges and the nature of the disposition of those charges. For example, where a young offender has been found guilty of a summary conviction offence the access period expires three years after the sentence imposed has been completed (s. 119(2)(g)) and where there is a conviction for an indictable offence, the access period ends five years after the completion of sentence (s. 119(2)(h)). Section 128 then stipulates that upon the expiry of the access period, a young offender record cannot be used “for any purpose that would identify the young person to whom the record relates as a young person dealt with under [YCJA or YOA]”.

14 The Ontario Court of Appeal has characterized Part 6 of the YCJA as demonstrating “a clear intention to protect the privacy of young persons ... to avoid the premature labeling of young offenders as outlaws and to thereby facilitate their rehabilitation and reintegration into the law-abiding community”: S.L. v. N.B. at para. 35.

21 The issue before me is similar in nature and I am bound by the decision in S.L. v. N.B. Although in the normal course I could order the production of documents relevant to an issue before me as a trial judge, I have no jurisdiction to do so if the document in question is a record governed by the YCJA. Only a judge of the youth court has jurisdiction to make such an order. Counsel before me fairly conceded this to be the case.

22 Second, in my view, if I cannot order production of the record, it would be contrary to public policy for me to permit the substance of the record to be used. It is not merely the record itself that is protected under the YCJA, but also the information contained in the record. Section 129 provides that a person who obtains access to a record is not permitted to disclose the information contained in the record, unless that disclosure is authorized under the Act. Obviously, it is not the piece of paper on which the information is recorded that is of prime importance; it is the information itself. Defence counsel in this case did not obtain access to the record, but does have the information because of questioning at the preliminary hearing. The principle remains the same. To permit cross-examination on confidential information protected under the YCJA, would be to thwart the clear intention of Parliament, which was to have the use of such information controlled by the YCJA.

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).

[22] It appears that the three- to five-year expiry period ended for the last conviction on Brandon’s youth record by at least 2016. The Crown did not strongly contest the defence’s submissions that the procedures in the YCJA have not been complied with and, in its submissions, asked me to make a ruling that would contradict the holdings in the three Ontario Superior Court decisions Sheik-Kasam, Kanhai and Hankey, cited above.

[23] In Holmes v. Jarrett (1993), 68 O.R. (3d) 667, [1993] I.L.R. 1-2949 (Ont. Gen. Div.), at pp. 12-15, Granger J. outlined the principle of stare decisis that judges of the Ontario Superior Court of Justice generally adhere to:

[The conformity] view suggests that Judges ought to follow previous decisions of their colleagues unless certain specific situations exist. In Re Hansard Spruce Mills Ltd., [1954] 4 DLR 590, 13 WWR (N.S.) 285, Wilson J. stated at p. 286:

But, as I said in the Cairney case, I think the power or rather the proper discretionary duty, of a trial judge is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, has settled the law. But I have no power to override a brother judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same court and therefore of the same legal weight. That is the state of affairs which cannot develop in the Court of Appeal.

Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another judge of this court if:

a) Subsequent decisions have affected the validity of the impugned judgment; b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; c) The Judgment was unconsidered, a nisi prius judgment given in circumstances familiar with all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

If none of these situations exists, I think a trial judge should follow the decisions of his brother judges.

In R. v. Northern Electric Co. Ltd. et al., [1955] 3 DLR 449 (Ont. H.C.) McRuer, C.J. H.C. stated at p. 466:

Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel. McWilliam v. Morris, [1942] O.W.N. 447 where he said: “The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed., p. 321: ‘The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself will be followed in the absence of strong reasons to the contrary’”.

I think that “strong reason to the contrary” does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular Judge.

According to Chief Justice McRuer and Justice Wilson, the decisions of Judges of coordinate courts are persuasive and should be given considerable weight unless there are very cogent reasons to depart from such decision.

Between [the authoritative view and conformity view] lies the proposition as put forward by Justice Wilson and Chief Justice McRuer that Judges ought to feel bound to follow previous decisions of their colleagues, unless certain factors exist to persuade them to decide the case differently. In my opinion, that as it now takes approximately 30 months for the Court of Appeal to review a decision, it is imperative that as much certainty be brought to the law as possible until the Court of Appeal rules on a point and this can be best achieved by following the approach as set out by Chief Justice McRuer.

Accordingly, I must follow the Judgments of Rutherford J. and Chadwick J. in Despotopoulos and Torrance unless there is some indication that their decisions were given without consideration of the appropriate statute or that they failed to consider some relevant caselaw. [emphasis added]

[24] The Alberta Court of Appeal, in a timely judgment earlier this year, in Imperial Oil v. Flatiron Constructors Canada Ltd., 2017 ABCA 102, confirmed the Holmes v. Jarrett principle at para. 43:

Even if Queen’s Bench trial judges are not bound by each other, which is a dubious proposition in this context, a legion of cases discuss the general practice that decisions of an ordinary superior court though not absolutely binding on courts of coordinate authority nor on that court itself, will be followed in the absence of strong reasons to the contrary. In Holmes v Jarrett (1993), 68 OR (3d) 667, to cite one example, it is said that the “authoritative view requires judges to follow all previous decisions of their colleagues, allowing the Court of Appeal to correct any error if necessary.” It was unreasonable for the chambers judge to categorically conclude that a subsequent judge deciding the appellants’ damages will not feel compelled to follow the judgment of a colleague earlier given.

[25] Further, regarding youth and adult records, the similarity of the convictions on the youth and adult records is a factor to be considered in a Corbett analysis. Justice Archibald in R. v. Hall, 2011 ONSC 6526, indicated at para. 14:

The youth record, on the other hand, is 18 years old. It comprises offences which mirror his adult convictions in 1999. As previously indicated, the Crown did not press for the admission of the youth record. In weighing all of the circumstances, the introduction of the accused’s entire criminal adult record outweighs any need for the further introduction of his youth record given its age, the similarity in the nature of the offences as a youth to the offences committed as an adult, and the fact that he was a youth at the time. No distortion of any kind will be created by the excision of the youth record. No unfairness to the Crown’s case is created by the excision of the youth record. The introduction of the youth record adds nothing to the analysis of the accused's credibility by the jury, and may distract them from the task at hand.

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), 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

[26] Regarding Brandon’s youth record, it starts in 2009 and ends in 2011. This period spans two to four years before the murder charges pertaining to the shooting of Mr. Johnson on November 30, 2013. However, this youth record, at the date of this trial commencement in February of 2017 is outside the five-year period outlined in Sheik-Qasam and the cases following it. Further, many of the comments prohibiting cross-examination on the youth record in Sheik-Qasam and related cases apply to Brandon’s situation as well.

[27] Further, the youth record consists mainly of breach of court orders and drug possession convictions. Breach of court order convictions are also represented in the adult record. 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 (1) they bear similar convictions, and/or (2) the youth drug possession convictions do not add anything to the analysis of Brandon’s credibility – see R. v. Madruson, 2005 BCCA 609, at para. 53; Corbett, at para. 155; and Hall, at para. 14.

[28] Accordingly, in my opinion, the youth record has probative value that is outweighed by its prejudicial effect and it should be edited out of Joshua’s criminal record.

[29] Regarding the adult criminal record, which consists of violations of court orders, the defence concedes that Brandon may be cross-examined on his adult criminal record. The probative value of the adult criminal record exceeds any prejudicial effect.

CONCLUSION REGARDING ISSUE #1 – DEFENCE CORBETT APPLICATION TO EXCLUDE CONVICTIONS OF BRANDON BARREIRA

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

1. The youth record will be deleted in its entirety.

ISSUE #2 – DEFENCE CORBETT APPLICATION EXCLUDING CONVICTIONS OF CHAD DAVIDSON

FACTS

[31] Chad’s record consists of a total of five pages. The first two pages are youth court convictions from 1992 to 1996 (23 in total) and the last three pages are adult convictions from 1997 until 2012 (approximately 28 in total).

[32] The youth convictions consist of mainly theft-related offences and breaching court orders. These types of offences are repeated with abundant regularity in the adult criminal record with some diversification to other types of crimes as well over many years.

[33] In its Corbett application, the defence seeks to prevent cross-examination regarding:

i. The youth record, ii. The 1998 and 2000 convictions for dangerous operation of a motor vehicle, iii. The 2002 conviction for carrying a concealed weapon, iv. The 2009 conviction for armed robbery, and v. The 2013 conviction for uttering threats to cause death or bodily harm.

LAW

[34] The law has been reviewed in the Issue #1 section regarding Brandon and need not be repeated.

APPLICATION OF LAW TO FACTS

[35] Regarding Chad’s youth record, it is dated, starting in 1992 and ending in 1996. This period is from seventeen to twenty one years before the murder charges pertaining to the shooting of Mr. Johnson on November 30, 2013. Accordingly, the youth record is well outside the five-year period outlined in Sheik-Qasam and related cases.

[36] Further, the youth record consists of mainly theft-related offences and breach of court orders. These types of convictions are repeated in nauseating numbers over many years in the adult record spanning a 16-year period from 2007 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. See Hall, at para. 14 and my decision regarding Joshua’s Corbett application in R. v. Barreira et al., 2017 ONSC 2447, at paras. 71-74.

[37] In my opinion, the youth record has probative value that is outweighed by its prejudicial effect and it should be edited out of Chad’s criminal record.

[38] Regarding the remaining charges that the defence seeks to edit out, they need to be looked at in the context of the entire record. On October 8, 1997, Chad (just 18 years old), on a variety of charges, received a 15-month jail sentence to be followed by a one-year term of probation. Thirteen months later, Chad must have been on probation and, on November 5, 1998, was convicted of dangerous driving, breach of probation plus four other charges, and so received a penitentiary sentence of approximately 27 months plus a three-year driving prohibition. It appears he served his sentence in Millhaven Bath and later at Collins Bay.

[39] On June 2, 2000, Chad was released on statutory release. On November 29, 2000, Chad was recommitted as a statutory release violator. On that same day, November 29, 2000, Chad was convicted of break and enter, flight, drive disqualified, and dangerous operation of a motor vehicle. Chad received another 12 months on these charges with credit of 165 days’ pre-sentence custody.

[40] On June 12, 2001, Chad received statutory release again and again, was recommitted on September 10, 2001 as a statutory release violator. On October 30, 2001, Chad received another 18 months’ jail (consecutive) for property offences with four months’ pre-sentence custody and 18 months’ probation.

[41] While in custody in the Kingston penitentiary, Chad was convicted of carrying a concealed weapon on June 13, 2002 and received another 30 days consecutive.

[42] On October 28, 2002, Chad was statutorily released again and presumably his 18-month probation would have commenced at the earliest on October 28, 2002 and he would have been on probation until at least sometime into early 2004. However, on May 27, 2003, Chad was recommitted as a statutory release violator. On August 29, 2003, Chad was convicted of uttering threats and received a 30-day sentence on top of 41 days’ pre-sentence custody in addition to two years of probation and a weapons prohibition order for ten years. At a minimum, this would mean that Chad was either in custody and/or on probation until the summer of 2005.

[43] However, on June 4, 2004, Chad received a three-year sentence for break and enter. On June 1, 2006 Chad was statutorily released, but again, in a familiar pattern by now, was recommitted on September 6, 2006 as a statutory release violator.

[44] On June 26, 2009, Chad was convicted of armed robbery contrary to section 343 (d) of the Criminal Code and received a 465-day sentence with a credit for 975 days of pre-sentence custody and a weapons prohibition order for life (s. 109 of the Code). Section 343(d) of the Code defines robbery as stealing from a person while armed with an offensive weapon or imitation thereof. Chad was under a 10-year weapons prohibition order since 2003 for uttering threats. To give Chad the benefit of the doubt, there is no evidence before me that he was in breach of the 2003 prohibition order that was in effect at the time of the armed robbery.

[45] On April 10, 2012, Chad was convicted of a number of possession under $5,000 charges which occurred and/or were charged on November 17, 2010. Chad received a 17-month sentence to be followed by 2 years’ probation and another weapons prohibition order.

[46] On April 24, 2012, Chad was charged and/or committed the offence of utter threat to cause death, for which he received a suspended sentence with a credit for 11 days of pre-trial custody and a-three year probation order and yet another weapons prohibition order. He was sentenced on October 30, 2013 (just one month before the shooting of Tyler Johnson).

[47] On November 30, 2013 Mr. Johnson was shot and killed; on February 14, 2014, Chad was arrested and charged with the first degree murder of Mr. Johnson.

[48] Put all together, Chad’s criminal record demonstrates that, over virtually his entire adult life from 1997 to present-day, Chad has been either in jail, on statutory release, or on probation. He has been subjected to numerous driving and/or weapons prohibition orders. None of these court orders, jail terms and/or statutory release periods have prevented Chad from offending and reoffending over and over again in what amounts to a steady stream of criminal activity that spans his entire adult life, with no material breaks.

[49] In my opinion, it is clear that a close scrutiny of Chad’s record starkly and graphically illustrates a “lack of trustworthiness that may be evinced by [Chad’s] 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’” – see Corbett, at paras. 24-27; Madrusan at para. 32.

[50] In my opinion, the probative value of introducing Chad’s entire adult record outweighs its prejudicial effect and is highly relevant to Chad’s credibility and trustworthiness as a witness.

[51] Ms. Audet referred me to R. v. Trudel (1994), 90 C.C.C. (3d) 318, [1994] R.J.Q. 678. In that case, the accused was charged with first degree murder and the Crown cross-examined the accused on a death threat conviction entered five years before the murder allegation. The court held, per Brossard J.C.A., at p. 324, that the cross-examination was improper because “the above quoted extract from the decision of the trial judge leads one to believe, rightly or wrongly, that his principal reason for allowing the evidence was to permit the jury to know the appellant was an individual of that [violent] nature.” The Crown in Trudel compounded the error by telling the jury that the accused had hidden the conviction from them by not disclosing it in chief. The trial judge did not correct this statement and the court concluded that the jury in that case could have made improper use of the evidence as cautioned by Dickson C.J.C. in Corbett. Accordingly, Trudel is distinguishable from the situation before me.

[52] In my opinion, the admission of the entire criminal record may be done in accordance with Dickson C.J.C.’s comments at para. 24 of Corbett, so long as its admission is accompanied by a clear instruction in law from me, the trial judge, regarding its use and the extent of its probative value.

[53] I have considered the impact of admitting the entire criminal record in terms of prejudice to the accused. The record in its entirety establishes a long-standing continuing pattern of criminal conduct and contempt for the law, ongoing for Chad’s entire adult life. I have carefully weighed the factors outlined by La Forest J. in Corbett. The accused’s record consists of numerous convictions of dishonesty and disregard for court orders, and there are no periods of any material length where the accused has led a legally blameless life. In the balancing process, after a detailed analysis of each entry, I find the probative value of admitting the full criminal record outweighs any prejudicial effect. Of course, the appropriate limiting instruction will be provided to the jury about the proper use it may make of Chad’s criminal record.

CONCLUSION REGARDING ISSUE #2 – DEFENCE CORBETT APPLICATION TO EXCLUDE CONVICTIONS OF CHAD DAVIDSON

[54] The Crown will be permitted to cross-examine Chad Davidson on his entire adult criminal record with the following edits:

1. The youth record will be deleted in its entirety.

ISSUE #3 – RECONSIDERATION OF CORBETT APPLICATION BROUGHT BY JOSHUA BARREIRA

[55] As indicated, I ruled in R. v. Barreira et al., 2017 ONSC 2447, regarding a Corbett application brought by Joshua, that with one exception, the Crown would be permitted to cross-examine Joshua on his entire adult criminal record.

[56] Regarding the counsel to commit murder conviction on March 9, 2009 with an offence date of March 9, 2007, counsel wishes that conviction to be edited to “counsel to commit an indictable offence”. Regarding the “possession of firearm or ammunition contrary to prohibition order” conviction, dated June 29, 2006, counsel wishes that conviction to be edited down to “possession contrary to a court order”.

[57] Mr. Zaduk referred me to R. v. P. (G.F.) (1994), 18 O.R. (3d) 1, 29 C.R. (4th) 315 (C.A.) and R. v. Batte (2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449 (C.A.). Justice Rosenberg, at para. 51 of Batte, indicates that a trial judge can edit a criminal record to limit its prejudicial effect. This can take the form of editing out certain convictions (as in P. (G.F.)) or describing the offence differently, such as referring to sexual offences as assaults, to minimize some of the prejudicial effect.

[58] Regarding the “possession of firearm or ammunition contrary to prohibition order” conviction, I have already, in my previous decision with respect to Joshua, cited earlier, deleted the possession of a loaded prohibited or restricted firearm conviction entered on the same date of June 29, 2006. There are, as well, three other convictions for failure to comply with a recognizance. As I indicated at para. 76 of that decision, the “four convictions for failing to comply with court orders (in various ways [emphasis added]) are suggestive of an “abiding and repeated contempt for laws” and court orders that the accused was “morally bound to obey”. I held that, “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.”

[59] The point above is that Joshua was in violation of two separate court orders – weapons prohibition order and three recognizance orders – which is relevant to his credibility as suggested by Dickson C.J.C. at para. 24 of Corbett. No one can dispute that possessing a firearm or ammunition contrary to a weapons prohibition order is a very serious matter. Reducing the charge to possession contrary to a court order (1) deprives the jury of relevant information, (2) presents the jury with incomplete information about Joshua’s credibility, and (3) presents the jury with a misleading picture. My approach will ensure that the jury has all relevant information, accompanied by a clear instruction regarding the extent of the convictions’ probative value – see Corbett at paras. 34-35, and Saroya at para. 13. Further, regarding prejudice, it is to be noted that no one at this trial is suggesting that Joshua was, at any time, in possession of any type of gun, or that Joshua was in possession, at any time, of the gun that appears to be used by Chad in the videos depicting the shooting of Mr. Johnson. In fact, when Joshua tried to tell the officers in his first statement that he shot Mr. Johnson, the officer refused to accept that statement, indicating that the videos clearly showed that it was not Joshua that did the shooting (a scenario that Joshua adopted in his second statement to the police, indicating it was Chad who shot Tyler).

[60] Regarding the “counsel person to commit murder” conviction, I was fully aware in my earlier ruling, cited above, that the similarity of past convictions to conduct for which the accused stands trial is one of the four factors that La Forest J. requires me to consider in a Corbett application. I concluded, at para. 78, as follows:

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 #3 – RECONSIDERATION OF DEFENCE CORBETT APPLICATION BROUGHT BY JOSHUA BARREIRA

[61] For the reasons outlined above, my order regarding cross-examination of Joshua Barreira made on April 20, 2017 in R. v. Barreira et al., 2017 ONSC 2447, has not changed and remains in effect.

ORDER

[62] Brandon Barreira can be cross-examined on his entire adult criminal record but the youth record must be deleted and cannot be cross-examined upon by any party.

[63] Chad Davidson can be cross-examined on his entire adult criminal record but the youth record must be deleted and cannot be cross-examined upon by any party.

[64] Joshua Barreira’s application for reconsideration of my order made on April 20, 2017 in R. v. Barreira et al., 2017 ONSC 2447, is dismissed.

[65] For clarity, pursuant to the decision of Martin J.A. in R. v. Boyce (1975), 7 O.R. (2d) 561, 23 C.C.C. (2d) 16 (C.A.) at para. 75, the word “conviction” in s. 12 of the Canada Evidence Act “is used in the sense of the adjudication of guilt plus the judgment or sentence” and can include the penalties imposed following the convictions.

Skarica J. Released: April 21, 2017

COURT FILE NO.: CR-15-4953 DATE: 2017-04-21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN

• and - BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO REASONS FOR JUDGMENT AS Date: April 21, 2017