Court File and Parties

Court File No.: CR 18-233 Date: 2019-11-27 Ontario Superior Court of Justice

Between: Her Majesty the Queen (Crown)

• and - Dale King (Accused)

Counsel: G. Akilie and B. Adsett on behalf of the Crown O. Goddard and J. Shime for the accused

Heard: November 18, 2019

Before: A.J. Goodman J.

RULING ON CORBETT APPLICATION TO EXCLUDE PORTIONS OF THE ACCUSED’S CRIMINAL RECORD

[1] The applicant, Dale King, is charged with second degree murder and his trial continues. Prior to the commencement of the defence case, Mr. Goddard applied to have his client’s criminal record edited in accordance with the procedures commonly referred to as a Corbett application.

[2] After hearing submissions, I granted the defence application and edited Mr. King’s criminal record.

[3] While Corbett applications are somewhat routine in criminal jury trials, in this case, amongst other factors, I considered the effect or impact of Mr. King’s Indigenous and disadvantaged status while exercising my discretion to edit his criminal record. I am advised by counsel that there has not been a prior judicial determination on point wherein such principles have been invoked as a factor in addressing a Corbett application. As such, I provided a brief oral ruling with reasons to follow. These are my Reasons.

Background:

[4] Mr. King has an extensive youth and adult criminal record for crimes of dishonesty and violence. His record begins in 2013 and continues unabated until 2017, just two months before he was implicated in the charge of second degree murder. His record includes findings of guilt for theft, assault x3, assault with a weapon, possession of property obtained by crime x3, mischief x2, break and enter with intent, fail to comply with undertaking x2, fail to attend court, eight breaches of probation under the Youth Criminal Justice Act (YCJA), possession of a schedule III substance and dangerous operation of a motor vehicle causing bodily harm. His adult convictions include assault causing bodily harm, break enter and theft x8, theft over $5000, theft under $5000 and breach of YCJA probation x2.

Positions of the Parties:

[5] The applicant submits that his prior record for the assaults has little probative value on the question of his credibility as a witness. It is submitted that the jury would be in no better position to assess the applicant's credibility as a witness even if they knew that he had committed one or more assaults in the past, or even the more egregious conviction for assault with a weapon. Many of the other convictions are duplicitous and would cause prejudice.

[6] The applicant asks this court to invoke Gladue type principles in an assessment of the probative value and prejudicial effect of an Indigenous person's criminal record. A record rooted in systemic factors, rather than as intentional disregard for the law, would result in a prejudice. Mr. Goddard submits that over the past decade, Gladue principles have been extended beyond sentencing proceedings. There is no reason or policy that prohibits an extension of Gladue principles to the discretion for which Corbett provides to trial judges.

[7] The Crown responds that the well-established principles under a Corbett application have been developed in the jurisprudence. It is crucial that the trial judge ensure that the jury is provided with a balanced perspective as to the accused’s criminal antecedents.

[8] The Crown submits that the Gladue principles do not apply to credibility assessments based in part upon an accused's previous convictions. The probative value of prior convictions is a function of balancing the relevant factors, such as the number of previous convictions; the nature of the offences; and the proximity of those convictions to the offence charged. Testimonial untrustworthiness is not derived from the moral blameworthiness of an Indigenous accused, to which Gladue principles are directed.

[9] The Crown submits that the defence position is premised on the notion 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.

Legal Principles:

[10] Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, (“CEA”) allows the Crown attorney to cross-examine accused persons on their criminal record if they choose to testify. However, a trial judge has the discretion to limit cross-examination on an accused's criminal record in order to safeguard the accused's right to a fair trial before a jury. The discretion to limit cross-examination arises if the probative value of the prior convictions is outweighed by their prejudicial effect.

[11] The leading authority for the admissibility of these type of statements for their substantive nature is found in the seminal case from the Supreme Court of Canada in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670.

[12] In Corbett, the Supreme Court of Canada adopted a non-exhaustive list of factors that were to be considered in exercising the discretion to exclude evidence of an accused's record. These factors include the nature of the previous conviction(s); the similarity of the previous conviction(s) and the offence(s) being prosecuted; the remoteness or nearness in time of the previous conviction(s); and the fairness of limiting cross-examination in cases in which the accused has attacked the credibility of a Crown witness and "resolution of the case boils down to a credibility contest between the accused and that witness": Corbett, at pp. 740-42.

[13] A Corbett ruling is discretionary. A trial judge must recognize the balance between the probative value of the criminal record and the prejudicial effect of its admission in order to ensure a fair trial.

Discussion:

[14] I adopt the relevant principles flowing from Corbett and its progeny. At the end of the day, the question is whether it is necessary to limit cross-examination on Mr. King’s criminal record in order to guarantee the accused's right to a fair trial. However, as I will explain momentarily, my analysis goes further to encapsulate Mr. King’s Indigenous heritage.

[15] The issue for the purpose of the Corbett application in this case is credibility. Nothing more arises from the prosecution’s case and defence counsel does not suggest otherwise. Mr. King’s criminal record contains a number of offences involving dishonesty that would be highly probative on the issue of the likely truthfulness of the accused.

[16] In this case, there was no Scopoletti application, nor has the defence challenged the principal Crown witness, (Mr. Matheson’s) credibility based on his criminal record. While properly raising concerns about the deceased’s care at the scene by paramedics, it cannot be said that the defence attacked the reliability, character and honesty of the police on relevant matters. Any attack on Crown witnesses, specifically, Mr. Matheson’s character or credibility, was premised on matters which were directly connected with the offence or the defence of self-defense, and were raised in an attempt to meet the prosecution's evidence. This is distinguishable from the situation found in R. v. Laing, 2016 ONCA 184, [2016] O.J. No. 1151.

[17] In R. v. Talbot, 2007 ONCA 81, [2007] O.J. No. 427, the Court of Appeal held that the Corbett decision turns on its own facts considered in light of the relevant context: at para. 38. In addressing the important balancing of probative value versus prejudicial effect, the court stated at paras. 34 and 35:

I see no error in the trial judge's identification of potential prejudice. Nor do I regard her frank acknowledgement of that potential prejudice as inconsistent with a recognition of the ability of juries to follow instructions. Acknowledging the risk of prejudice is not tantamount to suggesting that juries will ignore what they are told by trial judges. Rather, acknowledging the prejudice recognizes that despite proper instructions and the best of intentions by juries, faulty propensity based reasoning can infect a jury's deliberations. This is particularly so where an accused's criminal record lends considerable credence to propensity based reasoning.

The trial judge then turned to the probative value of the evidence of the respondent's convictions for crimes of violence. She concluded that the probative value of the evidence of the respondent's criminal record as it reflected on his credibility would not be materially reduced if she edited the record to exclude reference to the crimes of violence. The jury would still be told that the respondent was a recidivist who had committed crimes on a regular basis for many years. The jury would no doubt see the very direct connection between many of the crimes the respondent had committed and his trustworthiness. It is difficult to think that the jury's assessment of the respondent's credibility based on his criminal record would have been different had they known that he had committed not only some nineteen crimes, many of which involved dishonesty, but had also committed six additional crimes of violence.

[18] The case of R. v. Clarke, 2014 ONCA 777, [2014] O.J. No. 5301, was one that involved a vigourous challenge to the prosecution’s principal witness and extensive cross-examination. The court stated at paras. 7 to 10:

In the credibility contest between Mr. Joseph and the appellant, the trial judge noted that Mr. Joseph's credibility had been "vigorously challenged" on the basis of his involvement in the string of robberies leading up to the charges in the indictment.

The trial judge was troubled about admitting evidence of the appellant's past robbery convictions, echoing the Supreme Court in Corbett by observing that: "I am naturally most chary of admitting evidence of similar crimes." He considered editing the robbery convictions out of the record, but concluded that "doing so would significantly minimize both the seriousness and the persistence of the record, important considerations when assessing credibility." He added: "to omit the robberies in this case would overwhelmingly reduce the seriousness of the record, and create an artificial gap in it, from 1992 to 1999, followed by a few minor convictions." 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.

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.

The appellant takes particular aim at two lines in the ruling in which the trial judge states: "I acknowledge that counsel for the accused did not broaden the attack on Mr. Joseph's credibility to an attack on his character in general. In this case, I see little significance to this distinction." We read this not as an erroneous basis for admitting the robbery record, but simply as an acknowledgement that vigorous cross-examination on robbery by its very nature implicates the character of the witness, not only his credibility. In our view the trial judge was fully alive to the distinction between credibility and character.

[19] I acknowledge the court’s conclusions, but I do not find that the jury in this case would have a distorted view, as they will be apprised of segments of Mr. King’s criminal record without creating an artificial gap or compromising the seriousness of the record without creating an artificial gap or compromising the seriousness of the record. No one can suggest or conclude that he has an unblemished past.

[20] In R. v. Roberts-Stevens, 2018 ONSC 3540, [2018] O.J. No. 3399, the accused had a lengthy criminal record. At para. 5, Quigley J. states:

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.

[21] In the case of R. v. Farrell, 2011 ONCA 572, [2011] O.J. No. 3908, a claim of self defence was asserted. One of the pivotal issues was whether the victim was the aggressor (as claimed by the appellant). The trial judge concluded that the accused’s entire record should be before the jury, including the assault convictions on the basis that without it, the jury risked being presented with a misleading picture and a skewed view of the facts.

[22] The Court of Appeal determined that the trial judge erred with respect to his ruling on the Corbett application. While there was some attack on the victim’s credibility, because of his bad character, that aspect of the cross-examination was relatively insignificant. As in this case, there was no cross-examination of the Crown witness on any criminal record.[^1] As the Court of Appeal stated at para. 4:

This case falls within this court’s decision in R. v. B. (W.), 2000 5750 (ON CA), 145 C.C.C. (3d) 498 at paras. 45 – 49. The attack on the victim’s evidence may incidentally have impacted on his character but the cross-examination was primarily directed to the truthfulness of his account of the incident.

[23] In allowing the appeal, the court concluded that whether the appellant or the victim was the aggressor was an important issue in the case. The evidence of the prior convictions and the facts underlying those convictions were highly prejudicial. Similar arguments are raised by the Crown in this case.

[24] I endorse Quigley J.’s statement at para. 28 of Roberts-Stevens.

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 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 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.

[25] I am persuaded that this is the very situation that arose here, especially with the difficulty both Crown and defence had with Mr. Matheson’s testimony and when, or if ever, he spoke the truth. I accept that if such cross-examination crossed over from credibility to attacking Mr. Matheson’s character, it was incidental in attempting to obtain a version of events from this witness that he could actually admit or adopt during his testimony.

[26] Mr. Akilie rightly acknowledges that my task is to balance the interests. The balance that must be struck is between the probative value of the record and its prejudicial effect. While crimes involving dishonesty are certainly relevant to the credibility of the accused, this is not to suggest that other convictions are not relevant, particularly depending upon the issues in a given case.

Corbett and the Indigenous Accused:

[27] A novel submission advanced by the applicant is that, as an Indigenous person, he has experienced discrimination throughout his lifetime and consequently, fears discrimination may impact the jury’s consideration of his full criminal record. This despite the challenge for cause based on race that was engaged in this case.

[28] I am cognizant that 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 p. 697.

[29] No evidence was adduced on a voir dire for this application. One of the difficulties is that I do not have an evidential foundation in support of the applicant’s position. Nonetheless, for the purposes of this discrete application, I am able to rely on counsel’s submissions as to the extent and nature of his client’s personal disadvantages he faced as an Indigenous person in the community.

[30] I can also comfortably take judicial notice of systemic discrimination against Indigenous persons involved in the criminal justice system.

[31] It may not be proper to classify or expand the Corbett considerations as merely importing the Gladue principles to the analysis. At this stage of the trial, a better approach would be to consider not merely the accused as an Indigenous person, but rather whether there is some disadvantage or discrimination facing a particular accused as an Indigenous person in the community. This may be satisfied by the introduction of some, albeit limited, evidence from an accused during his evidence in chief.

[32] While the case of R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, dealt with the murder of an Indigenous woman and focused on the proper interpretation and application of the provisions of s. 273.1 and s. 276 of the Criminal Code, Moldaver J. for the majority, stated at paras.199:

Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system (see e.g., Williams, at paras. 54 and 58; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60 and 67; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few (para. 28). Moreover, in Ewert, this Court stressed that "discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system" (para. 57). In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done [Emphasis added].

[33] In support of this court’s specific consideration of the accused’s indigeneity for this application, defence counsel submitted an academic article by David M. Tanovich entitled “Combatting Stereotyping & Facilitating Justice: McLachlin’s Vision for the Law of Evidence” in eds. Vanessa Gruben & Graham Mayeda, Controversies in the Common Law: Tracing the Contributions of Chief Justice McLachlin (forthcoming). Professor Tanovich’s article argues the former Chief Justice’s flexible and principled approach to evidence admissibility in Canada ought to be applied to facilitating justice for Indigenous accused. The Chief Justice states that “courts can and should take proactive steps to recognize racism and prevent it from compromising trials and thereby marring the justice system”.[^2]

[34] To say racism can rear its ugly head in criminal proceedings is trite. The Chief Justice, in R. v. Williams at para. 58, held that “racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity”. With respect to an Indigenous accused with a criminal record, racist stereotypes heighten the potential prejudicial effect of allowing cross-examination based on that record.

[35] Professor Tanovich argues the principles of Corbett should not be strictly applied to allow for the cross-examination of an Indigenous accused on a prior criminal record. Indigeneity, by itself, may indeed tip the scales towards greater prejudice. The existence of racial bias only serves to heighten the risk of propensity reasoning.

[36] But racism and its prejudicial effect in the mind of a juror is only half of the story. Systemic racism in Canadian society has also led to the over-policing and racial profiling of Indigenous and racialized minority communities. This fact has been accepted by the Supreme Court of Canada: R v Le, 2019 SCC 34, 375 C.C.C. (3d) 431 at paras. 89-97. The impact of over-policing has led to the “continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization”: Le, at para. 95.

[37] In Gladue at para. 68, the Supreme Court similarly recognized “the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.” These conditions ultimately contribute to a higher incidence of crime and incarceration.

[38] As such, the fact that an Indigenous accused has a criminal record can, itself, be the very byproduct of systemic and direct discrimination. As a result, Professor Tanovich argues for caution in accepting criminal record evidence of an Indigenous individual as a reliable indicator of their willingness to be truthful when testifying: (p. 12).

[39] Mr. Goddard submits that the principles in Gladue ought to apply in the context of Corbett applications. I do not purport to stretch the Gladue analysis, which is fundamentally a sentencing principle, to its breaking point. I understand the invocation of Gladue in this context to merely signify that this court ought to carefully attend to the accused’s circumstances as an Indigenous person.

[40] In the Corbett context, this would require specific attention to the systemic or background factors for an Indigenous accused in weighing the probative value and prejudicial effect of prior criminal record evidence.

[41] In Gladue at para. 65, the Supreme Court recognized the over-incarceration of Indigenous people “arises from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders”. Sentencing innovation, by itself, will not deal with the underlying causes of crimes committed by Indigenous people nor with the problem of over-incarceration. More must be done.

[42] Even prior to the passage of Bill C-75, which codified the application of Gladue principles in the context of bail hearings, Ontario courts have accepted Gladue principles apply to bail hearings: see R. v. Hope, 2016 ONCA 648; R. v. Robinson, 2009 ONCA 205; R. v. McCrady, 2016 ONSC 1591, at paras. 60-63; R. v. Spence, 2015 ONSC 1692, at para. 69; and R. v. Achneepineskum, 2015 ONSC 5700.

[43] Courts in Ontario have also extended Gladue principles outside of the sentencing and bail contexts. In United States of America v. Leonard, 2012 ONCA 622, the Court of Appeal for Ontario found Gladue principles applied to extradition proceedings. In Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, the Court of Appeal found Gladue principles applied in the context of sentencing for civil contempt of court.

[44] In Leonard at para. 60, the Court of Appeal articulated that “Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons… Instead, the Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances”.

[45] Justice LaForest in Corbett at p. 740, did not foreclose the list of factors relevant in assessing the probative value or potential prejudice of prior criminal record evidence.

[46] The underlying thrust of Gladue principles is remedial. Thus, I take judicial notice of the fact that Indigenous persons are often subject to over-policing, over-charging, and racial profiling; I also recognize that discriminatory attitudes against Indigenous accused also persist. In this way, an Indigenous accused’s prior criminal record evidence can be of less probative value and, simultaneously, of greater prejudicial effect.

[47] Lastly, I note that the Court of Appeal in R. v. M.C., 2019 ONCA 502, [2019] O.J. No. 3213, at para. 87 did not foreclose the applicability of Gladue principles on the exercise of the Corbett discretion under s. 12(1) of the CEA.

Application of the legal principles to this case:

[48] The crux of the applicant’s application is to edit out all of his five assault related convictions or findings of guilt from his criminal record.

[49] I have reformulated the Corbett test to include, in the appropriate circumstances, disadvantages and systemic discrimination facing an Indigenous person in society as it relates to an analysis of probative value and prejudicial effect. However, there must be more than just the mere status of an Indigenous person as an accused to invoke this additional consideration. In other words, the mere fact that an accused is Indigenous is not enough to trigger the expansion of the Corbett factors.

[50] At this stage of the proceedings, there is no Gladue report, no finding of guilt and the trial is still unfolding. There must be some, albeit limited evidence to support the assertion that this particular accused had been disadvantaged as an Indigenous person in society. Otherwise, this consideration would not apply in the present case.

[51] In this trial, Mr. Goddard undertakes to call his client and present some evidence of Mr. King’s disadvantaged background and the discrimination he has experienced as an Indigenous man.[^3] Failing to do so, or if no evidence is adduced in support of counsel’s stated position, I would allow the Crown to revisit the Corbett application.

[52] I appreciate that in this case, while the assaults are not crimes of dishonesty and do not go to credibility, per se, that contention must be assessed in the context of this case where it is obvious that the accused intends to put forward claims that he acted in self-defence. Indeed, the assessment of self-defence itself requires considerations relating to the accused’s overall credibility that he did not act excessively, that he genuinely perceived that he was in danger and that he acted reasonably in all of the circumstances.

[53] That said, I am not insulating Mr. King from his criminal past in order to present a distorted view to the jury. In this case, there are ample convictions for crimes of dishonesty, upon which, the probative value of permitting cross-examination on his prior record clearly exceeds any potential prejudicial effect.

[54] Had the defence advanced an attack on the character of prosecution witnesses, criticized the integrity of the investigation or otherwise mounted a Scopoletti defence, the fact of the accused’s Indigenous status leading to discrimination would not have overweighed the other well-established Corbett factors. In other words, in assessing the impact of Mr. King’s criminal record against the issues in the case, I would have permitted cross-examination on at least one, possibly two assault related convictions in the balancing exercise mandated under Corbett and its progeny.

[55] Although a challenge for cause was exercised in this case, and despite legal instructions and well-intended jurors who, will no doubt abide by their oath, I cannot lose sight of the fact that there is well-documented and ubiquitous discrimination of Indigenous accused in the criminal justice system. In the circumstances of this case, the risk of prejudice is high, especially as it pertains to Mr. King’s prior assault convictions (or findings of guilt) in defending himself against the charge of second degree murder.

[56] In my view, and considering Mr. King’s Indigenous status, I am of the view that cross-examination on crimes of violence, especially those while he was a youth, would add very little, if anything, to the jury's ability to assess the respondent's credibility. Despite the best efforts of the jury, that insight could taint their ability to properly assess the evidence, and more importantly the credibility of Mr. King.

[57] The jury will have an ample opportunity to consider Mr. King’s testimony with the knowledge that he has at least 15 convictions or findings of guilt on his criminal record, the majority of which are crimes of dishonesty. Of course, a proper limiting instruction will be provided in my charge in order to ensure that the jury does not misuse or improperly elevate his criminal record in assessing Mr. King’s credibility.

[58] In this case, the identity of Mr. King as the shooter is admitted. The issues are self-defence, the intent to commit murder and the credibility of witnesses. As such, Mr. King’s Indigenous and disadvantaged background and the well-documented discrimination that he faces as an Indigenous person is a relevant factor for the Corbett application as it pertains to the balancing of probative value versus prejudicial effect of the criminal record.

[59] Finally, as mentioned to the parties, should Mr. King assert that he is the type of person who never acts in a violent manner or had never been involved in assaultive behaviour or otherwise presents himself in a misleading or distorted manner, the Crown may revisit this application.

Conclusion:

[60] Criminal law is evolving, and appellate and the criminal courts continue to recognize the societal impact of discrimination on Indigenous persons who find themselves charged with serious criminal offences. The case of Barton provides strong direction to trial judges from the Supreme Court of Canada in addressing real concerns about systemic, implicit or explicit discrimination against Indigenous persons in the criminal justice system.

[61] In this regard, I accept Professor Tanovich’s well-reasoned approach in support of the evolution of attempting to address systemic issues impacting Indigenous persons as they pertain to Corbett applications.

[62] In my opinion, it is not only timely but judicious to recognize an accused’s Indigenous background within the constellation of factors engaged by a trial judge in his or her discretion when addressing a Corbett application. Of course, this is not one additional or discrete factor. Rather, in assessing the probative value of Mr. King’s criminal record, the reasons or rationale sought for its introduction or use must be measured and balanced against its prejudicial effect overall, and as an Indigenous accused.

[63] For all of the aforementioned reasons, Mr. King’s application is granted. In the exercise of my discretion, I have adopted a more liberal or expansive approach in editing Mr. King’s criminal record; to eliminate crimes of violence and all offences under the YCJA prior to 2014. All crimes of dishonesty remain intact to the extent that they are not unduly repetitive.

A.J. GOODMAN, J.

Released: November 27, 2019

[^1]: I also observe that there was no similar fact application to support the Crown’s assertion of admissibility: at para. 6. [^2]: The Right Honourable Beverley McLachlin, “Racism and the Law: The Canadian Experience,” Journal of Law & Equality 1 (2002):22, cited at pg. 15 of Professor Tanovich’s article. [^3]: Of course, this is not a sentencing hearing and what is required is some limited evidentiary foundation.