CITATION: R v. Ennis-Taylor, 2017 ONSC 6392
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
M. MacKenzie, Counsel for the Crown
- and -
JAMALA ENNIS-TAYLOR
J. Filiberto, Counsel for the Accused
HEARD: October 18th, 2017
REASONS FOR DECISION ON CORBETT APPLICATION
LEMAY J.
[1] This is a Corbett application, brought by the Defence, to exclude portions of the accused’s criminal record, in the event that he testifies at the resumption of the trial on October 19th, 2017. I advised the parties by an endorsement late in the afternoon on October 18th, 2017 that the application was allowed in part, and that written reasons would follow. These are those reasons.
Facts
[2] This application, like all Corbett applications, has been brought at the conclusion of the Crown’s case. As a result, although the defence has not called its case (if any), the theory of the defence’s argument has become clearer. In order to understand the basis for my reasons, I will set out the outlines of the case at this point, as well as the accused’s previous record.
[3] Before I begin, however, I should note that the factual summary that I am providing below is modestly different than the ones that I set out in my other two rulings on this case. The reason for those differences is the timing. Unlike the other two rulings, I had the advantage of hearing the entirety of the Crown’s case before I was required to consider the Corbett issue.
a) The Allegations
[4] There are two separate events in this case. The Crown alleges that both incidents are sexual assaults, while the defence appears to allege (at least through its questions) that the sexual encounters happened, but were both consensual.
[5] The first event took place on November 11th-12th, 2015. On that date, the accused and the complainant met up. The accused took the complainant to a bar, and then to his apartment. At his apartment, the complainant and the accused spent some time together. On the complainant’s evidence, the accused suddenly, and without warning, pulled out his penis and sexually assaulted her, forcing vaginal intercourse on her while she was sitting on a couch. On the complainant’s evidence, the accused was standing over her as the assault took place.
[6] In cross-examination, the accused’s counsel suggested to the complainant that what had actually happened was consensual kissing and caressing. This led to consensual vaginal intercourse, with the accused sitting on the couch and the complainant on top of him. Counsel for the accused also suggested that the complainant had regrets about this consensual intercourse because she had a boyfriend in Las Vegas.
[7] The accused and the complainant have contact later in the day on the 12th of November. There is then almost no contact between them until the 29th of November. The complainant went to Las Vegas for approximately 9 days. On that day, the complainant and the accused agreed to go out again. They met at a bar chosen by the complainant where they had a couple of drinks.
[8] They then travelled to another bar. This bar was also chosen by the complainant, because she knew the staff and security at this bar and felt safe going there. The accused and the complainant travelled to this bar in the accused’s car. They spent some time there, and had additional drinks.
[9] They then left and went to a hotel. The complainant testified that she did not know that she was being taken to a hotel until they were in the accused’s car on their way to the hotel. Cross-examination suggested that the complainant was well aware that they were going to a hotel. Cross-examination also suggested that, at this point, the complainant had told the accused that she had broken up with her boyfriend in Las Vegas, and that the complainant had told the accused that this ex-boyfriend was constantly texting and calling her.
[10] The parties arrived at the hotel and checked in at 3:15 am. The complainant testified that the accused made her wait in the car until he had checked in to the hotel. The complainant was cross-examined on this point, and counsel for the accused suggested to her that the video evidence did not support this conclusion. Counsel for the accused suggested that the complainant had actually offered to pay for the hotel room.
[11] The complainant then testified that she did not remember anything after reaching the hotel room door until she remembers the accused being on top of her. She testified that, at that point, she was trying to push the accused off of her, and telling him to stop. She testified that he was holding her down, had her in different positions, and inserted his finger in her anus.
[12] The complainant testified that she tried to leave, and told the accused that her son was calling. The complainant testified that the accused would not let her go, and that he was not going to spend $200.00 on nothing. Then, she testified, the assault ended, she got her clothes on, grabbed her stuff and left the hotel room.
[13] The complainant was cross-examined, and it was suggested to her that there was consensual kissing as she and the accused entered the hotel room. It was also suggested to her that she performed fellatio on the accused, and then she invited him to join her on the bed, where they had consensual vaginal intercourse. It was put to the complainant that the only reason that the intercourse stopped was that the accused answered a phone call on her telephone, and told her boyfriend in Las Vegas that the complainant was no longer with him, but was now with the accused.
[14] At that point, counsel for the accused suggested that the complainant became upset, the sexual activity stopped, and she got dressed and left the hotel room. The complainant went outside, and she and the accused had some interactions in the parking lot of the hotel. The complainant then reported the assault to the police.
b) The Accused’s Record
[15] At the conclusion of the Crown’s case, I was provided with the following criminal history for the accused:
1999-07-20 TORONTO ONT (YOUTH COURT)
(1) OBSTRUCT PEACE OFFICER (2) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000
(1-2) PROBATION 9 MOS ON EACH CHG CONC
1999-07-22 TORONTO ONT (YOUTH COURT)
(1) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2) CARRYING CONCEALED WEAPON
(1-2) TIME SERVED (30 DAYS) & PROBATION 1 YR ON EACH CHG CONC
2000-05-12 TORONTO ONT (YOUTH COURT)
FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC
PROBATION 1 YR & DISCRETIONARY PROHIBITION ORDER SEC 20.1(3) YO ACT FOR 2 YRS
2001-06-01 TORONTO ONT (YOUTH COURT)
(1) ROBBERY WITH VIOLENCE SEC 343(B) – 344 CC (2) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 354-355(B) CC (3) FAIL TO COMPLY WITH DISPOSITION SEC 26 YO ACT
(1-3) 4 MOS SECURE CUSTODY 3 MOS OPEN CUSTODY & PROBATION 29 MOS ON EACH CHG CONC
2001-06-19 TORONTO ONT (YOUTH COURT)
FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC
1 DAY SECURE CUSTODY & (TIME SERVED 5 DAYS)
2002-11-06 TORONTO ONT
USE OF CREDIT CARD SEC 342(1)© CC
1 DAY & PROBATION 1 YR & (30 DAYS PRE-SENTENCE CUSTODY)
2005-01-11
(1) ROBBERY WITH FIREARM (2) AGGRAVATED ASSAULT SEC 268
(1-2) 3 YRS ON EACH CHG CONC & (CREDIT FOR THE EQUIVALENT OF 5 YRS PRE-SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 109 CC
2005-05-03 TORONTO ONT
ASSAULT CBH SEC 267 (B) CC
30 DAYS CONSEC TO SENT SERVING
2011-10-24
(1) SEXUAL ASSAULT SEC 271 CC (2) FORCIBLE CONFINEMENT SEC 279(2) CC
(1-2) TIME SERVED (CREDIT FOR THE EQUIVALENT OF 52 MOS PRE-SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 109 CC
[16] There are a number of Youth Court offences in this list. However, counsel for the defence confirmed during the course of argument that these offences are properly part of the accused’s record on this motion.
Positions of the Parties
[17] Defence counsel took the position that all of the violent offences should be removed from the record. More specifically, the convictions for assault, sexual assault and forcible confinement should be removed completely, and the robbery offences should be read down to be thefts. The Defence argued that this dividing line would leave the Crown with the ability to attack the accused’s credibility, but would eliminate any crimes where there was a substantial risk of propensity reasoning. In the Defence’s view, this was an appropriate balancing.
[18] The Crown took the position that the entire record should be put before the jury, including the sexual assault and forcible confinement offences. The Crown argued that the entire record was necessary to ensure that the jury was not misled about the accused. He had led a life of crime, and has shown a disregard for the rule of law and for other people. Crown counsel argues that the default position is that the entirety of the accused’s conviction should be part of the record, and that we should trust the jury, with proper instruction, to deal with it appropriately. Finally, in this case, the complainant’s credibility has been attacked and, as a result, the jury should have the whole picture of both the complainant and the accused.
Legal Analysis and Decision
[19] I start with the principle that the evidence of the accused’s record is presumptively admissible, both under section 12 of the Canada Evidence Act and under the principles set out in R. v. Corbett (1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670). However, the trial judge has a discretion to decide whether to admit all, some or none of the accused’s criminal record.
[20] The Corbett decision lists a number of factors that are considered in deciding whether the accused’s criminal record should be received into evidence. These factors are as follows:
a) The nature of the previous convictions.
b) The degree of similarity between the prior conviction and the alleged offence. The more similarity, the greater the dangers of propensity reasoning.
c) The remoteness or proximity of the prior offences.
d) Whether the accused has attacked the character/credibility of the Crown’s witnesses.
[21] In exercising the discretion and applying these factors, the trial judge must ensure a fair trial for both the accused and for the community as a whole (see R. v. Harrer (1996) 1995 CanLII 70 (SCC), 42 C.R. (4th) 269 (S.C.C.)) This balancing involves a consideration of the probative value of the evidence as against its prejudicial effect (see R. v. Charland (1996) 1996 CanLII 7284 (AB CA), 110 C.C.C. (3d) 300 (Alta. C.A.) at paragraph 16, aff’d [1997] S.C.J. No. 106)
[22] In terms of the factors set out above, some of these offences are eighteen years old. As a result, there is an argument that some of them are simply too remote in time to be considered as relevant. However, the Crown rightly makes the point that the record as a whole discloses an accused who has issues in following the law, and in respecting the Courts.
[23] As a result, Defence counsel did not argue that I should redact any of these offences on the basis of remoteness, and I accept that position as being entirely reasonable in the circumstances.
[24] In light of these factors, and the accused’s record, there are three key points that need to be addressed in my analysis, as follows:
a) The issue of credibility versus character. In other words, how has the accused challenged the complainant’s credibility?
b) The issue of whether the robberies and assault convictions should remain on the accused’s record for the purposes of cross-examination.
c) The issue of whether the sexual assault and forcible confinement charges should remain on the accused’s record for the purposes of cross-examination?
[25] I will address each of those issues in turn.
a) The Credibility/Character Issues
[26] Crown counsel argues that the accused has put the complainant’s character in issue by asserting that she cheated on her boyfriend. The Defence rejects that argument, and states that only the complainant’s credibility has been attacked, and that the questions were confined to the events surrounding the two incidents.
[27] Some of the cases that follow Corbett use credibility and character interchangeably. It is true that at the margins there is some blurring. However, it seems to me that credibility refers to the believability of the complainant in respect of her or his testimony about a particular incident, while character refers to their general believability because of their general personal behavior.
[28] This distinction is explained by Charney J. in R. v. R.J.R. (2016 ONSC 5357) where he stated (at paragraph 10):
The Applicant contends that while he has attacked the complainant’s credibility he has not attacked her character. The Ontario Court of Appeal has distinguished between “an attack on the character of Crown witnesses initiated by the defence and attempts to meet the prosecution’s evidence that incidentally impact on character” (R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 34 C.R. (5th) 263 at para. 46) “A suggestion that the complainant’s evidence … was untrue is not an attack on her evidence because of bad character” (Batte, para. 47).
[29] Similar reasoning was adopted in R. v Bryan ([2006] O.J. No. 3831). In that case, Stinson J. was faced with a case where the accused’s counsel had cross-examined the complainants, and challenged the motives behind their testimony. The complainants in Bryan, who were teenaged girls at the time, alleged that they had been held against their will and that three of them had been sexually assaulted. The accused suggested that, instead, the complainants had fabricated their allegations in order not to get in trouble with their parents for staying out all night and having a consensual party with the accused and some of his friends.
[30] In that case, Stinson J. found that the attack on the complainants was directly connected with the offence the accused was charged with and was raised to meet the prosecution’s case. As a result, he took the view that this was not an attack on the complainant’s character per se.
[31] In my view, the same analysis applies to this case. By suggesting to the complainant that she cheated on her boyfriend, the accused is suggesting that she had a motive to fabricate the specific allegations in this case. This is directly connected with the offences charged in this case, and is an attempt to meet the prosecution’s case.
[32] As a result, I am of the view that the Crown’s argument on this point fails. The accused has not put the complainant’s character in issue.
b) Robbery/Assault
[33] The Defence seeks to have me read down the robbery offences because of the fact that they are crimes of violence and might suggest that the accused has a propensity to commit a violent offence such as a sexual assault. The Crown asserts that these offences are offences relating to dishonesty, and that they should not be read down.
[34] I reject the accused’s arguments on this point for two reasons:
a) Robbery is a crime that involves a significant element of dishonesty, and crimes of dishonesty are clearly relevant to the accused’s credibility.
b) Reading down these convictions will give the jury an incorrect impression of the nature and seriousness of these offences.
[35] As a result, the robberies will remain on the accused’s records, and the references to robbery with violence will also remain.
[36] This brings me to the assault offences. The accused seeks to have me exclude these offences because of the fact that they are crimes of violence and might suggest that the accused has a propensity to commit a sexual assault. The Crown disagrees, and argues that the whole record is necessary to assess the accused’s credibility.
[37] On these offences, I accept the accused’s argument for the following reasons:
a) The assault convictions are not specifically probative of any issue that the jury has to determine. They do not go to whether the accused is dishonest, and I see no other issue that they would be relevant to. It appears to me that these offences primarily relate to the accused’s character.
b) There is a significant element of prejudice with the assault convictions in that they are convictions for a crime that has some similarities to the one that the accused is currently on trial for.
[38] In the circumstances, when I consider the relative probative value versus prejudicial effect, I am of the view that the assault convictions, including the assault causing bodily harm conviction, should not be put to the jury.
c) The Sexual Assault/Forcible Confinement Conviction
[39] The Crown advances a number of points in support of their assertion that these convictions should be included in the accused’s record as it is presented to the jury.
[40] I start by acknowledging that, in some circumstances, it would be possible to put a previous sexual assault conviction into evidence against an accused who was facing a charge of sexual assault. This is made clear by the decision in R. v. Halliday ([1992] M.J. No. 581 (C.A.)). However, it is also clear that the admission of a previous conviction for precisely the same offence will result in a substantially higher risk of propensity reasoning.
[41] It should be noted that the Crown sought to introduce the details of these convictions by way of a similar act evidence application. I dismissed this application prior to the commencement of the trial in separate reasons (see 2017 ONSC 5948). I have some of the same concerns about the prejudicial effect of these convictions even without the background facts being admitted into evidence in this case.
[42] This brings me to the Crown’s argument that, in the context of a lengthy criminal record, prior convictions will have a higher probative value. In particular, the Crown argues that these offences should be included to demonstrate that the accused has a disregard for the rules of society, and has led a life of crime.
[43] The problem with this argument is that, even with these offences excluded from the accused’s record along with the assault convictions, there is still going to be a lengthy record before the jury, which will assist them in understanding the Crown’s position. The jury is unlikely to be misled by the elimination of the sexual assault and forcible confinement convictions.
[44] The Crown’s final argument is that, by excluding the sexual assault and forcible confinement conviction, there will be a significant gap in the accused’s jail time, and the jury will be misled into believing that there is a time period in which he was out in the community and had a clean record. In support of this position, the Crown directed me to R. v. Crowley ([2001] O.J. No. 613).
[45] I agree with the Crown that I must be concerned about the misleading impression that will be left if the convictions for sexual assault are excluded, particularly given that I have excluded the assault convictions as well. I also accept that I must look at the picture that I am leaving for the jury as a whole in deciding which offences to exclude in this case. Excluding more offences runs the risk of leaving the jury with a misleading picture of the accused’s circumstances.
[46] However, when all of the factors are considered, these convictions should also be excluded for the following reasons:
a) Even without the sexual assault, forcible confinement and assault convictions, the jury will have before it a significant record covering a long period of time. This record will provide the Crown with ample opportunity to demonstrate that the accused has difficulty following the rules of society, and that he has committed crimes of dishonesty.
b) Like the assault convictions, the sexual assault and forcible confinement convictions do not appear to have any probative value on their own.
c) The prejudicial effect of including convictions for the same offences that the accused is charged with in this case before the jury is clear. If the accused has been convicted of sexual assault and forcible confinement previously, there will be a temptation to fall into propensity reasoning.
[47] As a result, the convictions for sexual assault and forcible confinement are to be excluded from the record of the accused.
Conclusion
[48] As a result, I am ordering the following:
a) All convictions with an element of dishonesty, including the Robbery with Violence conviction and Robbery conviction are to remain in the accused’s record for presentation to the jury.
b) All convictions for assault, assault causing bodily harm, sexual assault and forcible confinement are to be removed from the accused’s record for presentation to the jury.
[49] I confirm that an amended criminal record, reflecting the substance of my ruling, was entered at trial as an exhibit before the release of these reasons.
LEMAY J.
Released: October 25, 2017
CITATION: R v. Ennis-Taylor, 2017 ONSC 6392
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JAMALA ENNIS-TAYLOR
REASONS FOR DECISION ON CORBETT APPLICATION
LEMAY J.
Released: October 25, 2017