COURT FILE NO.: CR/18/40000444/0000 DATE: 2019-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEON BROWN
Counsel: Tara Brun and Brianne Bovell, for the Crown Nathan Gorham and Breana Vandebeek, for Deon Brown
HEARD: February 22, 2019
M. Forestell J.
Ruling: Corbett Application
Overview
[1] The accused, Deon Brown, is charged with the second degree murder of Tevone Wright. The offence is alleged to have occurred on August 22, 2017 in the City of Toronto.
[2] Tevone Wright died as a result of a stab wound to his neck. It is admitted that Deon Brown inflicted that stab wound and caused the death of Mr. Wright. The issues in this case are self-defence, provocation and the state of mind of Mr. Brown.
[3] Mr. Wright and Mr. Brown were co-tenants with five other men in a rooming house. In the early morning hours of August 22, 2017, Mr. Brown and Mr. Wright argued in the kitchen of the rooming house. Mr. Brown’s bedroom was just off the kitchen. Mr. Brown video recorded the interaction. In the video-recording it appears that Mr. Brown is standing in his bedroom or in the doorway of his bedroom. Mr. Wright questions why Mr. Brown is still at the house and says that he is trespassing and should leave. Mr. Brown questions Mr. Wright about Mr. Wright throwing away Mr. Brown’s things. In the video, Mr. Wright charges forcefully towards Mr. Brown, apparently pushing the bedroom doors and saying to Mr. Brown to ‘do something with your knife’. After this, blood can be seen. Mr. Wright left the area and went upstairs to seek help from other tenants. Another tenant, Ray Smith called 911. After about a minute and a half, Mr. Brown also called 911.
[4] It is alleged that four days before Mr. Wright’s death, Mr. Brown and Mr. Wright had an argument in the kitchen over Mr. Wright making noise. Another tenant, Everton McDonald, testified that Mr. Brown held a knife in his right hand while ‘cursing’ Mr. Wright.
[5] The landlord of the rooming house, Kurt Blackson, testified that he received a complaint from Everton McDonald about Mr. Brown brandishing a knife a few days before Mr. Wright’s death. The landlord testified that as a result of this complaint, he told Mr. Brown to leave immediately and told him that the police had been called. The telephone records from Mr. Brown’s cellular phone show that Mr. Brown told the landlord, ‘end of the month’; apparently indicating that he would leave at the end of the month.
[6] The Crown has now concluded its case and defence counsel seeks a ruling preventing the Crown from cross-examining the accused on his criminal record, should the accused decide to give evidence in his own defence.
The Governing Legal Principles
[7] Section 12(1) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, provides that a “witness may be questioned” as to whether or not they have been “convicted of any offence.” The rationale for this statutory provision is that evidence of prior convictions is relevant to the credibility of a witness.[^1]
[8] In R. v. Corbett,[^2] the Supreme Court of Canada held that this section includes a discretionary jurisdiction in trial judges to prevent such questioning where the probative value of that record in relation to the credibility of the accused, is outweighed by its prejudicial effect. In addition, this discretion permits the judicial editing or sanitizing of the details of the criminal record of an accused so as to reduce any potential prejudicial impact some convictions might have, while maintaining their probative value on the issue of credibility.[^3]
[9] Where the defence establishes, on the balance of probabilities, that the probative value of the prior criminal convictions is outweighed by the prejudicial effect of the admission of the evidence, such cross-examination will be prohibited.[^4]
[10] There are at least four factors that should be taken into account in the exercise of this discretionary jurisdiction on Corbett applications.[^5]
[11] The first factor is the specific nature of the previous convictions. Some offences, like perjury, or offences of dishonesty, will be more inherently probative on the issue of the credibility of the accused than some other types of offences, like driving offences or drug-related offences.
[12] The second factor is the remoteness or nearness in time of the previous convictions to the charges now facing the accused. The older the conviction, the less probative value it will generally have in relation to the current credibility of the accused. The more recent the conviction, the greater the probative value it will generally have on the present credibility of the accused as a witness.
[13] The third factor is whether the previous conviction is similar in nature to the offences now charged. The more similar the previous convictions are to the currently alleged offences, the greater the potential prejudice may be to the accused if cross-examination is permitted. The more similar the offences, the more tempting it may be for the jury to engage in prejudicial and prohibited propensity reasoning.[^6]
[14] The fourth factor is trial fairness and relates to the nature of any defence attack on the credibility of the Crown witnesses. The more vigorous the defence attack on the credibility and character of the Crown’s witnesses, and the greater the emphasis placed by the defence upon the prior criminal records of Crown witnesses, the more likely it is that the court will permit the Crown to similarly cross-examine the accused on the details of his criminal record. Otherwise, the jury might get a distorted picture. However, as Rosenberg J.A. stated in R. v. Batte, at para. 46, “[t]here is a distinction between an attack on the character of Crown witnesses initiated by the defence and attempts by the defence to meet the prosecution’s evidence that incidentally impacts on character. It is only where the cross-examination of a Crown witness goes beyond such attacks and directly impugns the character of the Crown witness that trial fairness may require that the Crown be able to cross-examine the accused fully on his criminal record.”
[15] These four factors do not constitute an exhaustive list of the relevant considerations.[^7] In the exercise of this discretionary jurisdiction, a trial judge may also consider other relevant factors. For example, the cases have recognized that the longer and more consistent the criminal record of the accused, the more probative it will be on the issue of the credibility of the accused. This is because such a record may reveal a global and longstanding disregard for the law and a general lack of trustworthiness.[^8]
Application of the Principles
[16] Deon Brown has been convicted of the following criminal offences:
| Date | Offence | Sentence |
|---|---|---|
| September 16, 1993 (Youth Court) |
Assault X2 | 1 year probation on each charge concurrent |
| June 3, 1996 | Assault with a weapon | 1) Suspended Sentence and Probation 1 year (65 days PSC) weapons prohibition for 10 years |
| December 23, 1996 | 1) Possession of property obtained by crime under $5,000 2) Fail to appear (X2) |
1) 1 day (48 days' PSC) 2) 1 day on each charge, concurrent |
| January 22, 1997 | Possession of Property obtained by crime | 14 days (12 days' PSC) |
| August 5, 1997 | 1) Possession of Property obtained by crime under $5,000 2) Possession of a narcotic 3) Possession of Property obtained by crime over $5,000 4) Fail to comply recognizance 5) Dangerous operation of a motor vehicle |
Counts 1-4: 2 months on each concurrent (3 months' PSC) and probation 18 months Count 5: 2 months concurrent, plus 18 months' probation concurrent, plus 12 months driving prohibition |
| March 25, 1998 | Possession of a Schedule II substance | 1 day (66 days PSC), plus probation 18 months |
| November 10, 1998 | Possession of Property obtained by crime over $5,000 | 30 days |
| July 30, 1999 | Assault | 1 day (30 days PSC) & probation 12 months |
| June 4, 2012 | Assault | Suspended sentence & 12 months' probation |
[17] Counsel for Mr. Brown has argued that all of the previous convictions of the accused should be excluded. Counsel argued that the offences of dishonesty are of little probative value because they are dated. The offences of assault and assault with a weapon from 1993 and 1996 are similarly dated and also prejudicial. The most recent offence of assault in 2012 is dated and also prejudicial, given the nature of the offence before the Court. There is a risk that the jury would engage in propensity reasoning if the Crown is permitted to cross-examine on the entries for assault and assault with a weapon.
[18] The defence has challenged the credibility of some of the Crown witnesses, but has not cross-examined on the criminal convictions of any witness nor has the defence brought out evidence of the record of the deceased for an assault in 2016.
[19] I have concluded that the Crown should not be permitted to cross-examine Mr. Brown on any of the entries on his record.
[20] The Crown conceded that the convictions for drug possession have little probative value. I agree. The risk of prejudice outweighs their probative value because of the risk that the jury will infer that Mr. Brown is a criminal and that he is more likely to commit crimes.
[21] The offences of violence on the record of Mr. Brown have little probative value on the issue of credibility. The Youth Court entry for assault and the 1996 entry for assault with a weapon are very remote in time. The 2012 entry is also dated, occurring 7 years ago. The potential for prejudice is significant. The jury could engage in the prohibited propensity reasoning that the convictions for crimes of violence make it more likely that Mr. Brown committed the offence of murder. The potential prejudicial impact of these offences outweighs their probative value.
[22] The convictions for possession of property obtained by crime, failing to comply and failing to appear would have probative value on the issue of the credibility of Mr. Brown if not for the fact that they are over 20 years old. They are so remote in time that their probative value is substantially reduced. I am of the view that the potential for prejudice outweighs any limited probative value of these convictions in the context of this case. There is no consistent pattern of criminal conduct given the long gaps in the record.
[23] In reaching my conclusion, I have considered the submission of the Crown that trial fairness requires that the Crown be permitted to cross-examine more fully on the criminal record. There were attacks by the counsel for the accused on the credibility and reliability of Crown witnesses. The attacks, however, related to meeting the case against Mr. Brown and did not include any attack on general character. The attack on the credibility and character of Mr. Blackson was directed at establishing a financial motivation for evicting the accused and at countering the impression created by the evidence of Mr. Blackson in his evidence-in-chief that Mr. Blackson was a responsible and diligent landlord. The challenges to certain police witnesses using their notes were a challenge to the credibility and reliability of the officers’ observations. The challenge to Det. Price included questioning the conduct of the investigation, but it did not include a challenge to the character of the officer. There was no general attack on the character and integrity of any officer.
[24] In the circumstances of the present case, the defence has not attacked the character of witnesses such that trial fairness requires that the Crown be permitted to cross-examine the accused on his criminal record.
Conclusion
[25] If the accused elects to give evidence, the Crown may not cross-examine him on his criminal record.
M. Forestell J.
Released: March 5, 2019
COURT FILE NO.: CR/18/40000444/0000 DATE: 2019-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEON BROWN
Ruling: Corbett Application
Forestell J.
Released: March 5, 2019
[^1]: R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.), at p. 461
[^2]: [1988] 1 S.C.R. 670
[^3]: R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51
[^4]: R. v. Paul, 2009 ONCA 443, at para. 14; R. v. Madrusan, 2005 BCCA 609, at para. 27-28; R. v. Lambert, 2010 NBQB 50, at paras. 18-19
[^5]: R. v. Laing, 2016 ONCA 184, at paras. 20-21; R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 68; R. v. McManus, 2017 ONCA 188, at para. 82
[^6]: R. v. P.(G.F.) (1994), 89 C.C.C. (3d) 176 (Ont. C.A.)
[^7]: R. v. Laing, supra, at para. 20
[^8]: R. v. Charland (1996), 110 C.C.C. (3d) 300 (Alta. C.A.), at pp. 312-313, affirmed, [1997] 3 S.C.R. 1006