BACKGROUND

[1] Mr. Mikasinovic was charged with aggravated assault. The Crown alleged that during the early morning hours of June 22 2013 Mr. Mikasinovic punched the victim, Tim Runge. Mr. Runge was seriously injured: he fell to the ground and suffered brain trauma.

[2] Mr. Mikasinovic testified in his own defence. The jury acquitted him of aggravated assault but convicted him of the lesser and included offence of assault causing bodily harm. Prior to testifying Mr. Mikasinovic’s counsel, Mr. Murphy brought, brought a “Corbett” Application. A Corbett Application is an application to prohibit cross-examination of an accused person on a criminal record. On January 23, 2017, I granted the application and prohibited the Crown from cross-examining on Mr. Mikasinovic’s criminal record. I indicated that my reasons would follow. These are my reasons.

ANALYSIS

[3] Mr. Mikasinovic has a youth criminal record consisting of the following convictions:

• January 5, 2002: one count of possession of property obtained by crime over $5000 for which he received probation;

• February 15, 2002: one count of possession of property obtained by crime over $5000 for which he received probation;

• June 27, 2002: two counts of possession of property obtained by crime under $5000; one count of mischief under $5000; one count of possession of break-in instruments. He received 45 days for these offences.

[4] Mr. Mikasinovic also has an adult criminal record consisting of the following convictions:

• December 18, 2002: one count of fail to comply for which he received a $250 fine;

• January 8, 2003: one count of assault and one count of assault causing bodily harm. He received a suspended sentence.

[5] Under s. 12(1) of the Canada Evidence Act a witness may be cross-examined on their criminal record. A jury may take a person’s criminal record into account when assessing that person’s credibility: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at para. 21-23. There is no presumption against the admissibility of an accused person’s criminal record. To make such a presumption risks keeping the true picture from the jury: Corbett, paras. 33-35; R. v. N.A.P. (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont.C.A.).

[6] Ultimately, a court must weigh the probative value of the prior convictions against the risk that a jury may engage in inadmissible propensity reasoning, even with limiting instructions: R. v. Talbot, 2007 ONCA 81 at para. 33.

[7] In R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont.C.A.) Rosenberg J.A. summarized at para. 48 the factors that a judge should weigh:

In Corbett, while Dickson C.J.C. disagreed with La Forest J. as to whether the record should be admitted, he accepted the factors that should be taken into account in the exercise of the judge’s discretion. Among the most important factors enumerated by La Forest J. at pp. 740-44 are: the nature of the previous conviction, the remoteness or nearness of the conviction to the present charge, whether it is a conviction for a similar offence (in which case there is a greater risk of prejudice to a fair trial), and the nature of the defence attack on the Crown witnesses.

[8] In this case, Mr. Mikasinovic’s criminal record is remote. He is now 33. His record consists of youth court entries and entries when he was 18 or 19. It is also notable that the judge who convicted him of assault and assault causing bodily harm suspended the passing of sentence. I inferred that these assaults were not particularly serious. I also concluded that the probative value of these convictions is not particularly high: R. v. McFayden (2002), 2002 CanLII 3327 (ON CA), 161 C.C.C. (3d) 252 (Ont.C.A.) at paras. 10-11. Furthermore, there was also a danger that the jury would engage in prohibited propensity reasoning based on the assault and assault causing bodily harm convictions, notwithstanding that the punishment was at the very low end of the spectrum. Although a limiting instruction could probably have minimized the danger of inadmissible propensity reasoning, I saw little value in taking that risk where the probative value of the previous convictions was relatively low: McFayden, supra, at para. 13; Talbot, at paras. 33-34.

[9] It was also relevant that Mr. Murphy, on behalf of Mr. Mikasinovic, made a limited attack on the credibility of the Crown witnesses and did not attack their credibility at large or their characters in a wholesale fashion. There was little risk that the jury would be given a misleading picture if Mr. Mikasinovic were not cross-examined on his criminal record: McFayden, supra, at para. 14; Batte, supra, paras. 46-47.

[10] After weighing the remoteness of the convictions and the nature of the defence attack on the Crown witnesses, I concluded that the prejudicial effect of the previous convictions outweighed the probative value. I also concluded that editing would not assist. Accordingly, I prohibited cross-examination on Mr. Mikasinovic’s criminal record.

R.F. Goldstein J.

Released: February 6, 2017

CITATION: R. v. Mikasinovic, 2017 ONSC 863

COURT FILE NO.: CR-16-10000760-0000

DATE: 20170206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NEDELJKO MIKASINOVIC

REASONS FOR JUDGMENT ON CORBETT APPLICATION

R.F. Goldstein J.

R. v. Mikasinovic, 2017 ONSC 863

Case Summary

BACKGROUND

ANALYSIS

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1