Court File and Parties
COURT FILE NO.: 17-5-354CR DATE: 20180619
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Rob Kenny and Jim Cruess, for the Crown
- and -
TRE ROBERTS-STEVENS
Marcus Bornfreund and Norman Stanford, for the Defendant/Applicant
Defendant/Applicant
HEARD: May 22, 2018, at Toronto, Ontario
Michael G. Quigley J.
Reasons For Ruling
Re: Corbett Application
[1] The applicant, Tre Roberts-Stevens, is charged with second-degree murder. At the conclusion of the Crown’s case, counsel for the defence indicated that Mr. Roberts-Stevens would testify, but that would be subject to bringing this Corbett application to exclude some of his criminal record from the evidence at trial, and to prevent the Crown from cross-examining him on certain of those prior convictions.
[2] While it is common for accused persons with criminal records who propose to testify to bring a Corbett application to exclude evidence relating to prior criminal convictions, the Criminal Proceedings Rules of this court and the provisions of s. 12 of the Canada Evidence Act provide not only that evidence of prior criminal convictions of an accused person is presumptively admissible, but also that the accused is subject to cross-examination on his or her prior criminal record. The accused is subject to cross-examination on that record just as other witnesses may be questioned about criminal antecedents, because prior convictions are relevant to the credibility of a witness, including an accused person who chooses to give evidence at his own trial.
[3] The seminal case is the decision of the Supreme Court of Canada in R. v. Corbett.[^1] At page 395 of that decision, Chief Justice Dickson stated as follows:
What lies behind section 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanor of the witness as he or she testifies, the witness’s appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness’s habits or mode of life. There could surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility.
[4] As numerous subsequent decisions make clear, in considering the defendant’s application to exclude part of his criminal record, ultimately the task of the trial judge is to determine whether or not the probative value of the evidence of prior convictions exceeds the potential risk of prejudice to the accused having a fair trial.
[5] Corbett explains that evidence of criminal antecedents is presumptively admissible and ought to be heard by the jury in the absence of a cogent reason to exclude that evidence and information. However, considerations relating to the fairness of the trial are the other side of the ledger. That and the potential problem of an accused being convicted by a jury on the basis of propensity reasoning, simply because of a conclusion that he might be the sort of person that would commit the offence charged, explains why some trial judges have exercised their discretion in a number of cases to exclude portions of the accused’s criminal record, or the record in its entirety.
[6] It is the concern about propensity thinking or reasoning that gives rise to the serious admonishment that is provided to juries about the permitted use they may make of any portion of an accused’s criminal record that is introduced into evidence. It arises out of the concern that to include the record and to permit the jury to know about it could result in a diminution of the rights of the accused to receive a fair trial, and Corbett equally supports the discretion of the trial judge to exclude prior convictions or to limit cross examination, where the prejudicial effect of full disclosure of the accused’s full criminal record to his right to a fair trial would outweigh the probative value of that evidence.
[7] Nevertheless, it is not the case that trial fairness requires the exclusion of the accused’s record, because that would plainly be in direct conflict with the presumptive admissibility of that evidence, as well as the strong support that exists in the case law for the accused’s record to be introduced in evidence, at least in part if not in whole.
[8] Moreover, Corbett also makes it plain that trial judges should err on the side of inclusion of detail relating to the criminal record of the accused rather than excluding it. At pages 399–401 of Corbett, the Supreme Court stated as follows:
[C]oncealing 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. … Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. … We should regard with great 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.
[9] In determining the extent to which the trial judge may or should exercise his or her discretion to exclude prior convictions, Corbett also provides guidance on the factors that should be considered. These include the nature of the previous convictions, the remoteness or nearness of them to the present charge, on the assumption that more recent charges may have greater probative value but also greater prejudicial effect, the similarity of the prior convictions to the charges at issue before the court, and whether or not there has been a deliberate attack made on the credibility of a Crown witness, but the list is not exhaustive: Corbett, at paras. 153-158.
[10] The last factor will be engaged where the resolution of the case boils down to a credibility contest between the accused and that witness. I note in this case that the only witness in this case who identifies the accused at the scene of the crime, Mr. Paul Dixon, who recognizes him from having seen him before, was subjected to thorough cross-examination on his own “life of criminality”, as defence counsel described it, as well as his memory as affected by his admitted long term use of alcohol.
[11] However, I accept that did not amount to untoward challenging of the “character” of that witness. Similarly, there has been evidence calling into question whether Daniel Lypka was truly frightened of the accused, and there have been questions, to which of course he can never respond, that drew out his faults and frailties, and went so far as to suggest he was the true aggressor in the early morning of April 14 preceding the altercation that resulted in his death. That was a concern to me. Trial fairness does not work in only one direction so there are arguments that to the extent the credibility of important Crown witnesses has been challenged, the accused should not be able to do have his credibility be immune from attack.
[12] In my view, however, that is not a consideration on this application, and I accept the defence position founded on R. v. W.B. (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (C.A.) at para. 46 that “Defence counsel only challenged the accuracy and reliability of the evidence of the Crown witnesses, not their good character. There is a distinction. Questioning witnesses accounts of events and challenging the accuracy of those events does not create the potential for the kind of imbalance discussed in Corbett”: see also R. v. Vanezis, 2006 CanLII 37954 (ON CA), [2006] O.J. No. 4515 (C.A.) at para 26, R. v. M.(M.), [2003] O.J. No. 5949 (S.C.J.) at paras. 31-32, and R. v. Jackson, [2010] O.J. No. 992 (S.C.J.) at para. 12.
[13] It is also important to focus on the degree of similarity of the previous convictions to the charge that is before the court. Plainly Mr. Roberts-Stevens has never faced a murder charge before, or anything close to it in level of seriousness. However, as his record shows, he was convicted twice of youth crimes, first, robbery at about 16 years of age in January of 2011 and attempted theft under $5,000 and assault on September 27, 2013 when he would have been just under 18 years of age. Both of those offences have now crystallized into components of his adult record owing to the application of the provisions of ss. 119(2)(g) and (h) of the Youth Criminal Justice Act.
[14] As an adult, Mr. Roberts-Stevens has been convicted three times, first for another assault and theft under $5,000 on June 16, 2015, for possession of illegal drugs for the purposes of trafficking in Belleville on January 5, 2016, and on August 2, 2017, he was convicted of dangerous operation of a motor vehicle.
[15] Numerous cases note that the court must be vigilant in balancing the probative value of introducing the defendant’s criminal record into the evidence at trial against the potential prejudice that may be caused, particularly where that record includes one or more convictions that are truly like or related to the alleged offence. Prior convictions for the same crime ought to be admitted sparingly, particularly where there are multiple convictions for various other kinds of offences, because as the Supreme Court observed in Corbett, at para. 156, the more similar the previous convictions are to the charges in the case that is before the court, the greater is the potential prejudice that can be occasioned by the admission of those prior convictions. The risk is greater because the issue of propensity looms larger.
[16] Regardless, of the extent to which the trial judge concludes that a reference to the criminal record of the accused is appropriate, the jury must in any event be strongly instructed that prior criminal convictions may not be used as evidence of a propensity to commit crimes like the offences in question: see Corbett, above, at page 399.
[17] The accused does have a prior criminal record in this case consisting of seven prior offences. None of those offences comes close to the level of seriousness of this offence, but defence counsel seeks to exclude the youth offences, including the robbery, and the assault offences. None of those offences is fully similar to the predicate offence here.
[18] Defence counsel’s position is that none of the accused’s record should be admitted. Alternatively, he contends (i) the youth record, including the theft charge and the charge of robbery with its claimed higher connotations of violence must be excluded, not only because as he put it, youth offences should be left behind in youth absent a critical need for them to be brought forward, and regardless of the acknowledged crystallization of the accused’s youth offences under the YCJA, but also because he regards them as dated, having occurred between 3 and five years before the events in this case arose.
[19] Moreover, defence counsel argues that the tinge of violence that may be associated with even a simple assault means that in a case like this, where the alleged crime is clearly a violent one, that the jury will be unable to avoid propensity thinking and reasoning, no matter what instruction, caution and admonition is given to them if they are aware of even the assault conviction entered against Mr. Roberts-Stevens as an adult. The defence acknowledges that if I do not agree to exclude Mr. Roberts-Stevens record in its entirety, and for reasons that follow I do not, the 2015 theft offence, the 2016 possession for the purposes of trafficking offence arising in Belleville (which the jury already knows about at least factually from evidence already heard) and the 2017 conviction for dangerous operation of a motor vehicle, may all be put to the jury as matters relating to credibility.
[20] While acknowledging that the Court of Appeal has instructed that to properly assess an accused’s credibility, the jury may be made aware of the applicant’s other non-similar related convictions, without risking propensity reasoning (R. v. McManus, 2017 ONCA 188 (C.A.) at paras. 76-94), defence counsel nevertheless states at para. 22 of his factum that:
It is respectfully submitted that the Applicant’s record for crimes of violence must be excluded on a charge of second-degree murder where the defence was one of self defence. If the jury were to hear that the accused had prior convictions for assault related defences over several years, they would improperly reason, despite instructions to the contrary, that the accused had a propensity for violence and that they would infer from that propensity that he had instigated the confrontation with the deceased and meant to cause his death. The applicant’s prior record for violence has little probative value on the question of the applicant’s credibility as a witness. It is respectfully submitted, the jury would be in no better position to assess the applicant’s credibility as a witness even if they knew that he had a record for violence”: R. v. Talbot, 2007 ONCA 81 (C.A.) at paras. 76-94.
[21] Crown counsel seeks the introduction of the entire record, while acknowledging that it has no intention of actually cross-examining Mr. Roberts-Stevens on the details of those convictions, which the case law makes clear is impermissible in any event, and having no intent to even focus on the sentences that were imposed. Importantly, and correctly, Crown counsel notes that there is nothing in Corbett that limits the admissible criminal entries of the accused to so-called “crimes of dishonesty.” The Crown seeks to introduce the entire record to show that, although the accused’s record is not exceptionally lengthy, it does include a constant pattern of criminal behaviour over a period of years from 2011 when the accused was a youth offender until 2017, during which there is a more or less regular recurrence of criminal conduct.
[22] The Crown also correctly observes that the crystallization of the accused’s youth offences into adult offences by operation of the provisions of the YCJA means that they are to be treated as adult convictions. The special protections afforded to the accused by the provisions of the YCJA are no longer meant to be available to him. This is not to say Corbett considerations might not result in the exclusion or redaction of those youth offences, but they do not get excluded as youth convictions because they are statutorily recast as adult convictions. Goldstein J. considered this issue, and other issues relating to youth convictions in R. v. A.M.G., [2014] O.J. No. 223 (S.C.J.) at para. 11.
[23] Counsel referred to three decisions in particular in support of its position. It is agreed that the decision and R. v. Underwood, [1977] S.C.J. No.107 (S.C.C.) at paras. 6-13, establishes the time required to rule on the merits of this Corbett application at the close of the Crown’s case and not wait until after the accused has testified. The appropriate procedure is to hold a voir dire, as we have in this case, in which the defence revealed the evidence that it intends to call, either by way of viva voce evidence or through an agreed statement of facts, in order to permit me as the applications judge to have the appropriate context in which to apply the relevant factors that are set out in Corbett.
[24] In this case, in the event that the accused testifies, defence counsel indicated that it will be Mr. Roberts-Stevens testimony and position that he did not believe the person who arrived at the scene behind 32 Vanevery Street was Daniel Lypka. He believed that person, an assailant, was someone else, and he did not think the assailant who he thought was there to rob him, was Daniel Lypka.
[25] According to defence counsel, the accused would testify that he believed he was being assaulted by a person or persons unnamed, but who are known to him – later referred to as the “3-4 black males who had assailed him in March.” Defence counsel stated that at the time that Mr. Roberts-Stevens realized the assailant, or the person he thought was an assailant, was Daniel Lypka, was exactly when the firearm went off and that it went off accidentally in the course of a struggle over that firearm. As such, on the basis of such testimony, Mr. Roberts-Stevens will claim self-defence and accident flowing from that claimed self-defence in response to the charge.
[26] The other two cases referred to by the Crown were the decision of our Court of Appeal in R. v. Clark, 2014 ONCA 777, [2014] O.J. No. 5301 (C.A.). That was a case where the accused was convicted of manslaughter, unlawful confinement robbery and use of an imitation weapon. Clark had a lengthy criminal record and he argued on appeal that the trial judge should have removed those convictions, which were similar to the charges for which he was being tried. However, the trial judge considered the probative value of the entire record to be sufficient to outweigh its prejudicial effect, importantly, because the seriousness and persistence of his lengthy antecedents of criminal behaviour would be significantly minimized, impacting the proper assessment of his credibility. Moreover, omitting the many robberies that were on his record would have created an artificial gap in the record for a period of seven years between 1992 and 1999. Indeed, the trial judge specifically stated that 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. At paras. 9 and 11, the Court of Appeal stated as follows:
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.
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 into 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 in fences and the one in the indictment, which might “otherwise take on the trappings of near signature.” He also excluded the weapons defences 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.
[27] The Court of Appeal dismissed the appeal on the basis that the trial judge’s decision not to exclude all of Clark’s record from the evidence at trial was not unreasonable. The trial judge chose to remove references to firearms offences and the use of disguises in the context of robberies, which it considered sufficient to blunt the impact of the prior robbery convictions. Further, the judge gave an adequate warning to the jury above propensity evidence and about the risks of accepting the co-accused’s evidence without corroboration.
[28] In R. v. Madrusan, [2005] B.C.J. No. 2658, a decision of the British Columbia Court of Appeal, the accused was convicted on a charge of robbery of a convenience store. He had an extensive criminal record consisting of 37 offences many involving theft or violence or both, incurred over a record that dated back 16 years. The accused applied for an order precluding the Crown from cross-examining him on his record but the judge dismissed that application and admitted it in its entirety. She did not consider the record unfairly prejudicial to Madrusan, in part because the accused had directly attacked the complainant’s credibility. As such, fairness considerations required that the Crown be able to use the record to in turn challenge Madrusan’s credibility. Importantly, the Court of Appeal had no particular problem with the introduction of the lengthy record that showed virtually continuous criminal offences, and thus was not too remote to be admissible. However, it found that by failing to limit the number of repeat offences to one of each kind, which would have still reflected the accused’s continuing disregard for the law, the court concluded that the entire record would have overwhelmed the jury with similar offences to the one before them, and they set aside the conviction and ordered a new trial.
[29] In this case, Crown counsel acknowledges that my job is a balancing act, but I also accept the defence contention that the balancing of the right of the accused to a fair trial with the right of a jury to have all of the evidence before them is not the appropriate test on this application. Rather, the balance that must be struck is between the probative value of the record versus its prejudicial effect: R. v. Saroya, 1994 CanLII 955 (ON CA), [1994] O.J. No. 2920 (C.A.) at para 5.
[30] As McWilliam states, with respect to the nature of the previous convictions, it is the connection between the nature of the conviction and the credibility of the accused, which must be considered, not the connection between the nature of the prior conviction and the nature of the crime in the present case. Nevertheless, and while crimes involving dishonesty are certainly relevant to the credibility of the accused, this is not to suggest that other crimes are not equally relevant, particularly depending upon the testimonial approach that the defence intends to take if the accused testifies.
[31] I reject the contention in paragraph 22 of the appellant’s factum. It is overreaching and undermines the jury system for counsel to state in such definitive terms that
[I]f the jury were to hear that the accused had prior conduct convictions for assault related offences over several years, they would improperly reason, despite instructions to the contrary, that the accused had a propensity for violence and that they would infer from that propensity that he had instigated the confrontation with the deceased had meant to cause his death.(My emphasis)
This contention suggests that jurors are incapable of following instructions, and incapable of respecting a strong warning given by the trial judge of the impermissible uses of particular evidence relating to the accused’s record. That is a proposition that is plainly inconsistent with the entire foundation of our jury system, and I reject it out of hand.
[32] Further, defence counsel contends that the prior record for the assaults has little probative value on the question of the applicant’s credibility as a witness. He submitted that the jury would be no better position to assess the applicant’s credibility as a witness even if they knew that he had committed one or more assaults previously.
[33] In the particular circumstances of this case, I disagree. Defence counsel says the assaults are not crimes of dishonesty and do not go to credibility but that contention must be assessed in the context of the case where it is plain that the accused intends to put forward claims that he acted in self-defence and that the firing of the shotgun was an accident.
[34] However the assessment of self-defence itself requires considerations relating to the credibility of the accused contention that he did not act excessively, that he genuinely perceived that he was in danger, and that he acted reasonably in all the circumstances. To my mind, this causes questions relating to the conduct of the accused to be directly implicated in determining whether or not the self-defence can succeed.
[35] Moreover, the defence need not prove an entitlement to a self-defence: rather it is the Crown that must prove beyond a reasonable doubt that he did not act in self defence and that the shooting of the deceased was not an accident. There is no burden on the defendant, but to deny the Crown a piece of evidence relating to the accused’s background which could have an implication on the credibility of a self-defence claim, tilts the playing field unnecessarily in favour of prejudice and against probative value.
[36] On the other hand, in my view the youth offences should be excluded in this case. It is sufficient given the accused’s criminal record for the jury to know that he has been convicted of two thefts that are crimes of dishonesty, possession of prohibited substances for the purposes of trafficking, dangerous operation of a motor vehicle, and an assault committed in 2015. My concern is that to include the two youth offences raises the greater prospect of propensity thinking on the part of the jury, on the basis that a person who commences their life of criminality as a youth is simply a bad person. To my mind it raises much more serious concerns about propensity thinking then to permit the accused’s adult record, excluding the youth entries, from being admitted at trial.
[37] Further, and against this background, to permit the accused to testify in circumstances where a failure to allude to his criminal record at least in some material respect would suggest that he has no prior convictions, has committed no crimes of dishonesty, and has committed no crimes which could go to his credibility in his claim of self-defence and accident, would create an unreal and unbalanced fantasy environment, that would deprive the jury of important information about Mr. Roberts-Stevens that goes to his credibility as a witness, and suggest that he has a pristine past when plainly, he does not.
[38] In my view, it would be wrong to permit Mr. Roberts-Stevens to testify without reference being made to his criminal record. It is not a long record. It consists of only five entries embracing a total of seven offences. Moreover, notwithstanding the seriousness of that record, I find support for this conclusion in the case law which shows, for example in Corbett itself, that even in those circumstances where the accused was previously convicted of murder, and where the predicate offence being considered by the jury was a charge of murder, it was appropriate in that case for the jury to be made aware of that prior conviction, albeit with the strong admonition from the trial judge of the impermissible uses of that evidence, and an admonishment to use it only to assess his credibility.
[39] In the result, Mr. Roberts-Stevens may be asked about his criminal record before the jury. The specific manner in which the contents of that criminal record are to be described to the jury and in the instruction I will give immediately after that evidence is heard, is as follows:
Mr. Tre Roberts-Stevens has a criminal record. He was convicted of an assault and a theft under $5000 in 2015. Since that time he has been convicted of possession of illegal drugs for the purposes of trafficking, and dangerous operation of a motor vehicle.
[40] In fact, given that I am completing the writing of these reasons after the ruling was given, once Mr. Roberts-Stevens’ record was put into evidence to that extent, I then admonished the jury that they could not use that evidence to assist them in concluding that Mr. Roberts-Stevens was the type of person who might have committed the crime with which he is charged in this case, but rather that that evidence was to be used by them solely for the purposes of assessing the credibility and reliability of his evidence.
[41] In my view, permitting that level of information to be heard by the jury, permits them to understand that Mr. Roberts-Stevens does have a criminal record and yet achieves a proper balance between the presumptive entitlement of the members of the jury to know of that record, as mandated not only in the rules of criminal procedure of this court but also as sanctioned by the Canada Evidence Act. It endeavours to sanitize the manner in which his prior criminal activities were described so as to distance them to the greatest extent possible from appearing to be the same offences as that for which he was charged and on which he was being tried by this jury.
Michael G. Quigley J.
Released: June 19, 2018
COURT FILE NO.: 17-5-354CR DATE: 20180619
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
TRE ROBERTS-STEVENS
Defendant/Applicant
Reasons For Ruling Re: Corbett Application
Michael G. Quigley J.
Released: June 19, 2018
[^1]: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.