Court File and Parties
COURT FILE NO.: 15-M7871
DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
JOHN MCRAE Applicant
Counsel:
Marie Dufort/John Ramsay, for the Respondent
Joseph Addelman/Mash Frouhar, for the Applicant
HEARD: May 29, 2018
DECISION ON CORBETT APPLICATION
Beaudoin J.
[1] The applicant, John McRae, brings this application pursuant to R. v. Corbett, 1988 80 (SCC), [1988] S.C.J. No. 40; 41 C.C.C. (3d) 385 (S.C.C.) that his criminal record will not be adduced at trial.
[2] The applicant submits that the prejudice to him resulting from the jury being made aware of the entries on his criminal record far outweighs the probative value of this information with respect to his credibility.
[3] In particular, the applicant notes that the entries on the record are dated and he submits that such an old record does not take impair his credibility as a witness. The applicant maintains that if the jury is made aware of those convictions, they will engage in improper propensity reasoning and conclude that he is guilty of offence before the court as well.
[4] The respondent Crown opposes this application. The Crown notes that the applicant’s criminal record has already been placed in evidence through his statement to Detective Kevin Jacobs and through his own evidence at trial. The applicant has also referred to the deceased victim’s criminal record. The respondent submits that the applicant’s credibility is a crucial consideration in this trial and that any concerns about the improper use of the applicant’s criminal record can be answered through a proper address to the jury.
[5] The applicant’s criminal record goes back to 1963, but the majority of the convictions stem from a period from 1981 to 1993 when he resided in Alberta. There are a number of convictions which include theft under, possession of stolen property, breach of probation, driving while impaired, theft over, possession of stolen property, of being unlawfully at-large; of unlawfully selling a drug, possession of a narcotic, break and enter with intent, possession of an unregistered restricted weapon, fraud, uttering a forged document and robbery. The most recent conviction was in Ottawa in 2004 for an assault.
Conclusion
[6] Section 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5, allows the Crown to cross-examine accused persons on their criminal record – solely for credibility purposes – if they choose to testify. There is no presumption against the admissibility of an accused’s criminal record. A trial judge has the discretion to limit a cross-examination on an accused’s criminal record in order to safeguard the accused’s right to a fair trial.
[7] In Corbett, Chief Justice Dickson gave direction on this issue at para. 36:
36 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.
[8] In this trial, the applicant has introduced his own criminal record to a limited degree, has continually attacked the character of his victim and has referred to the deceased’s criminal record. He has attempted to present himself throughout this trial as the voice of reason and as the victim of the deceased’s abuse. At trial, he presented a fourth inconsistent version of how he came to fatally stab his son. There were only two people in the room at the time the stabbing death of Michael McRae. The applicant is the only person who is available to testify and his credibility must be fully appreciated. I have every confidence that the properly instructed jury can use his criminal record for its limited purpose.
[9] For these reasons, the application is dismissed.
Mr. Justice Robert N. Beaudoin
Released: June 20, 2019
COURT FILE NO.: 15-M7871
DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
JOHN MCRAE Applicant
DECISION ON CORBETT APPLICATION
Beaudoin J.
Released: June 20, 2019