CITATION: R. v. Bush, 2017 ONSC 7050
COURT FILE NO.: 15-2310
DATE: 2017/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
IAN BUSH
Applicant
James Cavanagh, for the Respondent Crown
Geraldine Castle-Trudel and Miriam Martin, for the Applicant
HEARD: November 23, 2017
CORBETT RULING
PUBLICATION BAN PURSUANT TO SECTION 648.1 OF THE CRIMINAL CODE
Beaudoin J.
[1] The Applicant, Ian Bush, is charged with the December 18, 2014 robbery, forcible confinement and attempted murder of Ernest Coté. Earlier this year, he was convicted of a triple murder which occurred in 2007.
[2] The Applicant now brings an application pursuant to R v. Corbett 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, to prevent the Crown from cross-examining him regarding these convictions. The applicant submits that the modest probative value of the record with respect to the applicant’s credibility is overwhelmed by the extraordinary potential for prejudice.
[3] The facts of the triple murder, (the “Garon murders”) are these. Ian Bush travelled by public transit to 1550 Riverside Drive, where he gained entry to the condominium building of the victims who were senior citizens. He posed as a courier to enter their apartment. Mr. Alban Garon was tied up, bludgeoned and then suffocated with a plastic bag. Mrs. Garon and the couple’s friend, Marie Claude Beniskos, (also a senior) where hogtied and suffocated by plastic bags placed over their heads. Credit cards belonging to Mr. and Mrs. Garon were stolen.
[4] On December 18, 2014, the Applicant is alleged to have committed a strikingly similar offense. Crown has presented evidence that the Applicant took public transit to a condominium owned by a senior citizen, Ernest Coté. He entered the building by posing as a city of Ottawa worker. According to the victim, Ernest Coté, when the male knocked at the door he demanded money. When Mr. Coté refused, the male pushed him into the apartment and bound his arms behind his back with duct tape.
[5] The intruder then removed a credit card from the victim’s wallet. He then covered Mr. Cote’s mouth with duct tape and placed a plastic bag over his head. He then wound duct tape around Mr. Coté’s neck to seal the bag. The intruder left the apartment with Mr. Coté’s credit card. Ernest Coté survived. He was able to free one hand, go to his bedroom, find a pair of scissors and puncture the plastic bag over his head.
[6] The Applicant has a single entry in his criminal record for the 2007 triple murder. At the murder trial, the Crown brought a similar fact application to admit the evidence of the applicant’s alleged involvement in the robbery and attempted murder of Ernest Coté to help prove the triple murder. That application was dismissed by Justice McKinnon who concluded that the evidence was too prejudicial to be allowed despite its probative value.
[7] The similar fact application brought by the Crown to admit the evidence of the triple murders in this case was also dismissed by me.
[8] The Applicant has indicated that it is expected that he will testify as to the events of December 18, 2014 much in the same way that he described them to the forensic psychiatrists at the Royal Ottawa Hospital when they conducted assessments of his criminal responsibility.
[9] In his disclosure to the psychiatrists, the Applicant stated that he had no plan to rob any person in particular, that he had brought duct tape from his home; that he always carried a plastic bag with him for shopping and that he had taped the plastic bag around Mr. Coté’s neck ensuring that there would still be an opening by speaking to him and that he was satisfied that his victim could still breathe. He described this as a plan that he had conceived of the night before since he needed money for shopping and also that this was a theory that he wanted to test out.
The Law
Section 12
[10] Section 12 of the Canada Evidence Act allows the Crown to cross-examine accused persons who choose to testify regarding the criminal records.
Examination as to previous convictions
12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
Proof of previous convictions
(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.
How conviction proved
(2) A conviction may be proved by producing
(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable on summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if on indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.
[11] It is conceded that the cross-examination under Section 12 is limited to the fact and date of the conviction and the sentence imposed. Section 12 does not allow for a cross-examination on the underlying facts.
[12] Corbett is the seminal decision in this area. There, the Supreme Court held that the trial judge has the discretion to limit a cross-examination regarding an accused person’s criminal record in order to defend the accused’s person’s right to a fair trial as protected in S. 11(d) of the Charter of Rights and Freedoms. This discretion may be exercised where the probative value of the prior conviction(s) is outweighed by their prejudicial effect.
[13] In Corbett the accused was charged with first degree murder in respect of the death of one of his associates in the drug trade. At trial, credibility was a crucial issue. The accused denied any involvement in the killing and attacked the credibility of the Crown's witnesses who identified him as the killer. These attacks were largely based on their criminal records. He elected to testify and his counsel sought to prevent the Crown from cross‑examining the accused on his previous record under s. 12(1) of the Canada Evidence Act. Counsel contended that to permit cross‑examination and proof of the accused's previous convictions, in particular a previous conviction of non‑capital murder, was so highly prejudicial that it would infringe on his Charter right to a fair trial. The trial judge rejected the argument. To minimize the adverse effect of a cross‑examination as to his criminal record, the accused admitted in his examination‑in‑chief that he had been convicted in 1954 of armed robbery, escaping custody, theft and breaking and entering, and in 1971 of non‑capital murder. In his charge, the trial judge warned the jury not to use the criminal record of the accused for any purpose other than credibility. The accused was found guilty of second degree murder and the Court of Appeal dismissed his appeal from conviction. The Supreme Court dismissed the further appeal to that court.
Justice Dickson speaking for the majority said this about section 12:
This rationale for s. 12 has been explicit in the case law. See, e.g., R. v. Stratton, supra, at p. 461, per Martin J.A., "Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness."
Similarly, in R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342, per Martin J.A., "The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness."
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."
Later, he added at para 28:
- Does section 12 of the Canada Evidence Act violate the guarantee contained in s. 11(d) of the Charter? Clearly section 12 creates no presumption of guilt nor does it deprive the accused of the right "to be presumed innocent until proven guilty". The effect of the section is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused. It remains, however, to consider whether it can be said that the effect of s. 12 is to deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused.
He continued at paras 35 – 37:
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.
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.
The balance struck by the combination of the Canada Evidence Act, s. 12, and the requirement for a clear direction from the judge is admirably summed up in the following passage from the judgment of Martin J.A. in R. v. Davison, DeRosie and :MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 441‑42:
An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack. If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross‑examination with respect to discreditable conduct and associations.
If an accused could in every case be cross‑examined with a view to showing that he is a professional criminal under the guise of an attack upon his credibility as a witness it would be virtually impossible for him to receive a fair trial on the specific charge upon which he is being tried. It is not realistic to assume that, ordinarily, the jury will be able to limit the effect of such a cross‑examination to the issue of credibility in arriving at a verdict.
In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross‑examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other. (emphasis mine)
And finally at para 39:
- In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark.
[14] The Applicant relies on the frequently cited factors found in Justice Laforest’s dissent:
the similarity of the previous conviction(s) and the offense(s) being prosecuted;
the nature the previous conviction(s);
the remoteness or nearness and time of the previous conviction(s);
the fairness of limiting cross-examination in cases in which the accused has attacked the credibility of the Crown witness and “resolution of the case boils down to her credibility contest between the accused in that witness”; and
the length of the criminal record.
[15] In my view, the analysis relied upon by the Applicant in the application of those factors has to be assessed in the light of more recent case law. The Applicant also relies on an additional factor having regard to the extreme publicity that surrounded the triple murder of 2007. That concern however was adequately addressed through the challenge for cause procedure in the selection of the jurors. It is to be noted that most of the jurors had little or no knowledge of those events.
[16] The prosecution has faithfully complied with this court’s ruling on the use of similar fact evidence. The trial has largely focused on the circumstantial evidence which identifies the accused as the intruder who attacked Ernest Coté. The evidence also focused on motivation and planning. The only eyewitness to the event, Ernest Coté, has since died. His hearsay statements have been ruled admissible; their ultimate weight will be left to the jury. Mr. Coté was never cross-examined. Mr. Bush’s version of the events could not be put to him in cross-examination. He cannot be called in reply.
[17] In this case, the accused’s intent when he placed the plastic bag over Ernest Coté’s head is the central and most relevant issue in this trial for attempted murder. His credibility as to that intent is the crucial issue for the jury to decide.
[18] In R. v. Saroya, 1994 CanLII 955 (ON CA) the Court of Appeal dismissed an appeal where, on a trial for aggravated assault, the defence had sought unsuccessfully to exclude his criminal record which included a conviction for attempted murder. The Court of Appeal agreed to the trial judge had not applied the proper principles as set out in Corbett in deciding the issue. It accordingly determined to decide the matter of fresh and said this:
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.
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.
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.
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.
[19] In R. v. C.S., 2013 ONSC 5797, C.S. was charged with aggravated assault by wounding and two counts of weapons dangerous. At the conclusion of the Crown’s case, C.S. brought an application to exclude his adult criminal record which consists of a single entry; a conviction for first degree murder. This conviction arises out of events that occurred in August 2009, approximately one and a half years after the events giving rise to the charges before the Court. The Court followed the ruling in Soroya and said this:
[14] It is also important to note that in Saroya it appears that cross-examination on the record was permitted after balancing the probative value of the record and its prejudicial effect even though there was no attack on the credibility of any Crown witness. I appreciate that the decision does not say this expressly but presume that if that had been done it would have been a factor referred to by the court.
The trial judge concluded as follows:
[16] The fact that C.S. committed the offence of first degree murder approximately 18 months after the offences that he is alleged to have committed in this case, is not in my view a relevant factor. The issue is his credibility as a witness in this trial and clearly the fact that he has been convicted for first degree murder is highly probative. It matters not that it came after the alleged assault on R.F. Furthermore a gap of 18 months is not such a gap as to suggest the conviction for first degree murder is remote or of less value, nor is this conviction dated. Mr. Feldmann also argued that the fact the offences before the court were alleged to have occurred when C.S. was a youth is material and that as a young person I should apply the law differently for C.S. I do not accept this submission for the same reason, it is his credibility now that is of concern. Furthermore, C.S. was only a few months under the age of 18 at the time of these offences.
[17] Neither counsel suggested that it was possible to sanitize or edit C.S.’s criminal record. Presumably this was because there seems to be no way to do so. The record consists of only one conviction and because it is a first degree murder charge, that puts its probative value at perhaps the highest in these types of circumstances.
[18] I appreciate that if the jury becomes aware of the fact that C.S. has a criminal record for first degree murder, given that he is facing a charge of aggravated assault, there is a real concern that the jury might engage in impermissible propensity reasoning. This concern was specifically addressed by the court in Saroya at para. 11 in very similar circumstances. The conviction for first degree murder is far more serious than the offences with which C.S. is currently charged and the danger of propensity reasoning is at its greatest because this is a serious and violent crime. However, cross-examination on C.S.’s record should be limited or denied only where the potential prejudice of that cross-examination exceeds the potential probative value of the record. As I have already stated the probative value of the record is high. Furthermore, in light of the vigorous cross-examination of R.F. on his criminal record, a serious imbalance would arise if C.S. testified and the jury believes he has an unblemished past. As the court said in Corbett a properly worded instruction both when the evidence is heard and at the end of the case will ensure that the jury understands how the evidence may and may not be used (at para. 35).
[19] For these reasons I have concluded that the probative value of C.S.’s criminal record outweighed any prejudice in permitting the jury to hear about it. I ruled that the Crown could cross-examine C.S. on his criminal record, if he elected to testify.
[20] Similarly, in this case, the Applicant’s credibility as to the events of December 18, 2015 is of crucial importance. Mr. Coté is not here to testify. The fact that he has been convicted of three murders is highly probative. A serious imbalance would arise if the jury believes that Mr. Bush has an “unblemished past”. The probative value of the Applicant’s record outweighs any prejudice the Applicant and that prejudice can be addressed through a properly worded instruction.
Mr. Justice Robert N. Beaudoin
Released: November 24, 2017
CITATION: R. v. Bush, 2017 ONSC 7050
COURT FILE NO.: 15-2310
DATE: 2017/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
IAN BUSH
Accused/Applicant
CORBETT RULING
Beaudoin J.
Released: November 24, 2017