Court File and Parties
COURT FILE NO.: CR 19-3-580
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARK RILEY
Counsel:
Samuel Walker, for the Crown
Kevin Kaczmara, for the Accused
HEARD: October 1, 2019
RULING ON ADMISSIBILITY OF ACCUSED’S CRIMINAL RECORD
P.J. Monahan J.
[1] Mark Riley was charged with a variety of offenses, including possession of marijuana and cocaine for the purpose of trafficking, assault causing bodily harm, and various firearms-related offenses. In the course of the trial, which proceeded before me with a jury, the Crown sought to introduce Mr. Riley’s criminal record. I ruled that at that stage of the trial,[^1] his record was not admissible. I indicated that written reasons would follow. These are those reasons.
[2] The Crown’s application to introduce Mr. Riley’s criminal record arose in light of the fact that Mr. Riley had proposed to introduce the criminal record of a third-party suspect, one Loxley Johnson. The Crown’s theory of the case was that Mr. Riley had taken over the apartment of a resident in a Toronto Community Housing building in order to sell crack cocaine and marijuana from a safe place. Mr. Johnson had been arrested in the same apartment where Mr. Riley was allegedly trafficking in marijuana and cocaine. The charges against Mr. Johnson had been withdrawn following the preliminary inquiry.
[3] The Crown noted that Mr. Riley had not brought a third-party suspect application in relation to Mr. Johnson prior to commencement of the trial. The issue of Mr. Johnson’s potential involvement in the matters before the court only arose in cross-examination of one of the Crown witnesses. Nevertheless, Crown counsel indicated that he was prepared to accept that there was relevant and probative evidence of Mr. Johnson’s connection to the alleged offenses. It was therefore open to Mr. Riley to introduce Mr. Johnson’s criminal record in support of his claim that Mr. Johnson rather than Mr. Riley had committed the offences before the court.
[4] However, the Crown argued that, in the event that counsel for Mr. Riley proceeded to introduce evidence of Mr. Johnson’s criminal record, the Crown should then be entitled to introduce rebuttal evidence in the form of Mr. Riley’s own criminal record. Mr. Riley’s record consisted of an October 26, 2015 conviction under the Youth Criminal Justice Act, S. C. 2002, c. 1, for assault causing bodily harm, for which he had received a sentence of 12 months probation.
[5] In support of its position, the Crown relied upon R. v. Parsons (1993), 1993 CanLII 3428 (ON CA), 15 OR (3d) 1 (CA), where the accused Parsons, who had been charged with robbery, had sought to introduce into evidence the criminal record of a third-party suspect, John Miller. In Parsons, Finlayson JA ruled that there was sufficient probative evidence linking Mr. Miller to the robberies in question and it was therefore open to Mr. Parsons to introduce Mr. Miller’s criminal record. However, Finlayson JA went on to rule that, if evidence relating to Miller’s propensity to commit robberies (in the form of his criminal record) was introduced into evidence, fairness dictated that the very similar evidence that the Crown possessed relating to Parsons could also be introduced:
I would go further and suggest that if the appellant chose to throw sticks at Miller, the Crown should be able to counter this evidence with any similar evidence relating to the propensity to commit robbery, not only of the appellant, but of the other suspects arrested with the appellant… To rule otherwise would leave the jury with the highly misleading impression that Miller alone of those arrested had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang.
[6] The Crown argued that, based on the reasoning in Parsons, if Mr. Riley proceeds to introduce evidence of Loxley Johnson’s criminal record, he has put in issue Mr. Johnson’s propensity to commit the offences before the court. Fairness would therefore dictate that, since Mr. Riley had put the issue of Mr. Johnston’s disposition at issue, this opened the door to the Crown to introduce rebuttal evidence of Mr. Reilly’s disposition to commit the offences before the court, namely, his 2015 conviction for assault causing bodily harm.
[7] I would agree that, as a general proposition, where an accused puts in issue the disposition of a third-party to commit the crimes with which he is charged, it is open to the Crown to introduce evidence of the accused’s own disposition in that regard. Thus, had Mr. Riley’s 2015 conviction for assault causing bodily harm been committed while he was an adult, it would have been open to the Crown to introduce evidence of that conviction in response to Mr. Riley’s introduction of Mr. Johnson’s criminal record.
[8] However, the complication in this case arises from the fact that Mr. Riley’s 2015 conviction relates to an offence committed while he was a youth. In the course of argument on this matter, Crown counsel, Mr. Walker, helpfully brought to the court’s attention the relevant provisions of the YCJA. In particular, s. 82 of the YCJA provides that, subject to s. 12 of the Canada Evidence Act, if the youth sentence imposed under the YCJA has ceased have effect, “the young person is deemed not to have been found guilty or convicted of the offence.” Section 82 has various exceptions and qualifications, but none of them is applicable in this case. Nor does the limitation to s. 82 set out in s. 119 (9) (a) of the YCJA apply in this instance.[^2]
[9] Mr. Walker took the position that, notwithstanding s. 82, it would have been open to the Crown to apply for access to the record of Mr. Riley’s 2015 conviction pursuant to s. 123 (1) of the YCJA. However, given that this matter arose in the middle of a jury trial, he was not prepared to seek an adjournment in order to pursue such an application.[^3] Mr. Walker therefore conceded that s. 82 governs in respect of Mr. Riley’s 2015 conviction. Since the sentence imposed for that conviction ceased to have effect as of October 2016, s. 82 deems Mr. Riley not to have been convicted of the offence.
[10] I note that s. 82 is subject to s. 12 of the CEA. Thus, in the event that Mr. Riley elects to testify, he may be cross-examined as to his 2015 youth conviction, subject to a Corbett application. However, since he has not yet elected to testify, the provisions of s. 82 apply and Mr. Riley is deemed not to have committed the 2015 offence.
P. J. Monahan J.
Released: November 13. 2019
COURT FILE NO.: CR 19-3-580
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARK RILEY
RULING ON ADMISSIBILITY OF ACCUSED’S CRIMINAL RECORD
P. J. Monahan J.
Released: November 13, 2019
[^1]: As discussed below, at this point in the trial Mr. Riley had not testified; thus the admissibility of his criminal record was determined without reference to s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[^2]: Section 119 (9) (a) provides that where, during the period of access to a record as provided for under s. 119, the young person is convicted of an offence committed while he or she was an adult, s. 82 does not apply in respect of the offence for which the record is kept under sections 114 to 116.
[^3]: Section 123 provides for an application before a youth justice court judge. I make no comment as to whether such an application could have succeeded had one been brought.