SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JACQUES LEONARD ROUSCHOP
P R O C E E D I N G S A T T R I A L
BEFORE THE HONOURABLE MR. JUSTICE R. SMITH
On Tuesday, October 11th, 2016 at OTTAWA, Ontario
VOLUME 10
APPEARANCES
M. Cunningham Counsel for the Crown
N. Calvinho Counsel for the Accused
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES Examination Cross- Re-
In-Chief Examination Examination
ROUSCHOP, Jacques 20 25 132
E X H I B I T S
EXHIBIT NUMBER Put in on Page
15A Supplementary criminal record
of Jacques Rouschop 22
Legend
[sic] – Indicates preceding word/s has/have been reproduced verbatim, or is missing, and is not a typographical error, but is a spoken error.
[ph] - Indicates preceding word has been spelled phonetically as pronounced and is not a typographical error, or indicates a deficiency in the annotations made by the in-court reporter, or due to the quality of the audio recording, and does not represent typographical errors.
[sp] - not spelled on record. Not spelled in notes.
Transcript Ordered: December 21st, 2016
Request received by ACT: January 4th, 2017
Transcript Completed: January 18th,2017
TUESDAY, OCTOBER 11TH, 2016
MADAM REGISTRAR: Morning, Your Honour.
MS. CUNNINGHAM: Morning.
MS. CALVINHO: Morning, Your Honour.
R E A S O N S F O R D E C I S I O N
THE COURT: So these are the reasons on the revised Corbett application, or I guess reconsideration of the Corbett application at the request of the crown.
The crown has brought a motion to revisit my previous Corbett decision, excising four of the accused’s prior convictions for sexual assault and sexual interference because their probative value on the accused’s credibility was low, and the risk of propensity reasoning by the jury was high.
I agree with the crown submission, or.... First of all, a Corbett ruling is never final and is always subject to review if the landscape of the trial changes. I agree with the crown submission that the probative value of the accused’s prior convictions for four sexual – sex-related convictions, I’ll refer to them as the prior sexual assaults, is now relevant to the issue of whether the accused always pleads guilty when he has done something wrong.
I accept the representations of defence counsel that she was not aware that the accused had pleaded not guilty to three of the four sex assaults – sex-assault convictions, and been found guilty after a trial.
Notwithstanding the lack of knowledge of defence counsel, the accused was questioned extensively about each of the 28 occasions where convictions were entered on his excised criminal record, and which record contained a total of 58 convictions.
The accused testified on each occasion he entered guilty pleas on 28 of the 28 court attendances where convictions were entered. The accused testified that he took responsibility for offences when he was guilty. The accused also said he advised other prisoners that it was better to accept responsibility and enter a plea of guilty when they have done something – had done something wrong.
The impression left with the jury by his evidence is that he always pleads guilty when he is charged and has done something wrong. This impression created – leaves the jury with a distorted view because the accused pleaded not guilty and went to the trial, and was convicted on three of the sexual assault charges, which were excised from his record.
The crown would not be able to have asked about the facts involved in the various convictions, but the defence could ask such questions, including whether the accused pleaded guilty or not.
The three convictions for sexual assaults resulted after trials, where the accused had pleaded not guilty. The fact is only relevant to the – his suggestion to the jury that he always pleads guilty when he is responsible for a criminal offence.
The accused pleaded guilty to the 2007 charge of sexual assault, and as such this conviction has limited probative value and will remain excised from his record for the reasons I gave on my initial Corbett application ruling.
The defence submits that I should give the jury an instruction that they should disregard the accused’s evidence that he pleaded guilty on each of the 28 occasions when he did something wrong, and advise the jury that this evidence is not probative of any issue.
The problem with this suggestion is that the jury may well find that this evidence establishes a pattern where the accused always accepts responsibility and pleads guilty when he has done something wrong, which they may find very persuasive. In addition, I am required to advise the jury that while I may comment on the evidence, it is for them to decide if they believe some, none, or all or none of the evidence, and then it’s their view of the evidence that matters.
The suggestion also does not address the fact that the evidence led by the accused presents a distorted view as he does not always plead guilty when he has done something wrong as occurred for the three convictions for sexual assault.
I’m of the view that the jury cannot be left with a distorted view or a misleading picture that the accused always pleads guilty when he has done something wrong when there are three instances where this was not the case.
As a result, I will reverse my Corbett ruling and follow the directions of Justice Dixon of the Supreme Court of Canada, speaking for the minority at paragraphs 34 to 35 of the Corbett decision, and where he stated that
“...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 that they may make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided, except as a last resort.
I’ve also decided not to simply advise the jury that the accused has been convicted on three other occasions after he has pleaded not guilty, without specifying the nature of those convictions. This would invite the jury to speculate and they might speculate that the convictions are for more serious charges, and I prefer to follow Justice Dixon’s directives and disclose the jury – present the jury with clear instructions against any propensity reasoning.
As a result, I will provide the jury with the three previous convictions of sexual assault in 1991 and 2005. The convictions for sexual interference will be described as convictions for sexual assault to avoid – to reduce any possible prejudice to the accused of being convicted of sex-related offences against persons under the age of consent. The conviction for sexual assault in 2007, where the accused pleaded guilty will remain excised.
The crown will not be permitted to suggest a pattern of pleading not guilty to serious sexual assault charges; and I will also give the jury clear instructions that they are not to use the accused’s prior convictions for sexual assaults to reason that the accused is more likely to have committed these offences, but for the limited purpose of providing an accurate picture to the jury that the accused does not always plead guilty when he is responsible for illegal conduct.
...above decision reviewed/approved by Justice Smith on January 17th, 2017.....