COURT FILE NO.: CR 19-30000340-0000
DATE: 20210810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.W.
Kevin Pitt, for the Crown
John Fennel, for H.W.
HEARD: July 22, 2021
judgment on CORBETT APPLICATION
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
R. MAXWELL J.
[1] The applicant H.W. is charged with sexual assault and sexual interference related to two complainants, A.M. and S.M., the daughters of his domestic partner, L.D. The allegations date back to the early 2000s when the complainants were children between the ages of 10 and 13 years old. The incidents are alleged to have taken place in a residence on Burrows Hall in Scarborough.
[2] At the end of the Crown’s case, defence brought a Corbett application (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670) to exclude all of the applicant’s criminal record, in the event that he testifies at his trial.
[3] The applicant’s criminal record consists of eight convictions accumulated between 1992 and 2011, as follows:
1992 – choking and assault with a weapon;
1992 – possession of a narcotic for the purpose of trafficking;
1993 – possession of a narcotic;
1994 – possession of a narcotic;
2002 – assault with intent to resist arrest;
2011 – assault and mischief under $5000.
[4] On behalf of the applicant, Mr. Fennel argues that the convictions are too remote in time to have any probative value of dishonesty. He points to the 10-year gap since the applicant’s last conviction and the further 10-year gap between his last conviction (for assault and mischief) and the previous one for assault with intent to resist arrest. The rest of the applicant’s criminal convictions pre-date 2002. He further argues that the convictions for assaults, as crimes of violence, are not probative of credibility and are too similar to the charges in this case, unfairly sullying the applicant as a person with a propensity to commit violent crimes.
[5] Mr. Fennel submits that while he attacked both complainants’ credibility, he did not attack their character. Rather, he argues that the witness J.M. put the applicant’s character in issue by stating that he is a “pervert” and in making a passing reference to abuse of her mother during her testimony. He argues that this compounds the risk that the jury will engage in propensity reasoning, that is, they will use the applicant’s prior criminal convictions to conclude that he is the sort of person who would commit the offences charged.
[6] On behalf of the Crown, Mr. Pitt argues that the defence put both the credibility and the character of the complainants and J.M. in issue and that the applicant’s prior convictions are probative of his honesty because the criminal record reflects a disregard for the law. He further argues that while the convictions are dated, they are not insignificant in number, and that excluding the criminal record would give the jury a distorted view of the applicant. He points out that none of the convictions are similar to the offences the applicant is currently facing, diminishing any prejudicial effect the prior convictions have. Finally, he notes that J.M.’s comments about the applicant being a “pervert” and the reference to abuse came out in cross-examination and that the Crown did not lead any bad character evidence.
[7] After hearing submissions from counsel, I gave brief oral reasons dismissing the application to exclude the applicant’s criminal record, with written reasons to follow. These are my reasons.
Analysis
[8] Under s. 12 of the Canada Evidence Act, RSC 1985, c. C-5, any witness, including the accused, can be questioned as to prior convictions. The court has discretion to disallow such questions, weighing the probative value of the evidence against its potential prejudicial effect. On a Corbett application, the issue to be determined is whether permitting the Crown to ask the accused if he has been convicted of criminal offences would result in trial unfairness.
[9] Unlike other types of bad character evidence, there is no presumption against the admissibility of an accused’s criminal record: R. v. N.A.P. (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 20. Section 12 of the CEA reflects Parliament’s expression that prior convictions bear upon the credibility of all witnesses.
[10] Where the Crown is permitted to cross-examine an accused under s. 12 of the CEA, the criminal record goes only to the accused’s credibility and the jury is to be cautioned as to the limited use of the evidence: R. v Farrell, 2011 ONCA 572, at para. 5; R. v. Talbot, 2007 ONCA 81, at para. 32.
[11] At common law, there is judicial discretion to exclude evidence when its probative value is outweighed by its prejudicial effect. This discretion includes the ability to exclude evidence of a defendant’s criminal convictions where exclusion is necessary to ensure the defendant’s right to a fair trial, including where disclosure of the criminal convictions would have limited value in assessing the credibility of the defendant but where disclosure would be highly prejudicial.
[12] In Corbett, the Supreme Court of Canada set out the factors that a court should consider when exercising its discretion:
(a) The nature of the previous convictions;
(b) The degree of similarity between the prior convictions and the alleged offence(s);
(c) The remoteness or proximity of the prior offence(s);
(d) The risk of creating a distorted or misleading picture for the jury, which could result where the applicant has attacked the credibility/character of Crown witnesses, but is insulated from his or her own criminal record; and
(e) The effectiveness of a limiting jury instruction.
[13] In this case, the credibility of the complainants and the witness are the central issue. The defence position is that the alleged offences never occurred. It is anticipated that, if the applicant testifies, he will flatly deny the allegations. The cross-examinations of the complainants A.M. and S.M., as well at the other Crown witness, J.M., focused on the credibility of the witnesses’ accounts. In the case of each witness, it was suggested that each had a motive to fabricate the allegations (to break up the relationship between the applicant and their mother), that each was lying about the allegations, and that each colluded with the others to come up with their stories.
[14] The character of A.M., S.M. and J.D. was also brought into issue. The picture painted of A.M., S.M. and J.D. is that they had a troubled youth, moving around frequently. For A.M. and S.M, those moves included one into the care of the Children’s Aid Society, and at least once, running away from their father’s home. In the case of A.M. and S.M., it was suggested that their mother kicked them out of the house. In the case of A.M., it was put to her that, years after the alleged abuse, she accepted money from her mother and the applicant to pay for car insurance and then refused to pay it back, leading to an argument which resulted in A.M. and her mother never speaking again.
[15] When this evidence is viewed in its totality, together with the repeated assertion that all three witnesses were lying to the court, it can fairly be said that the applicant attacked not only the credibility of the Crown witnesses’ allegations, but their character and personal trustworthiness.
[16] Against this backdrop, I have considered the five factors set out in Corbett. I conclude that the probative value of the evidence of the applicant’s prior convictions exceeds the risk of prejudice to a fair trial and should not be excluded.
[17] I will begin with the first and third factors of Corbett - the nature of the previous convictions and their remoteness or proximity to the alleged offences. While the applicant’s record does not include crimes of dishonesty, I agree with MacDonnell J.’s observation in R. v. Fullerton, 2011 ONSC 1601, at paras. 9-13, that it is not only convictions for offences involving dishonesty which may be probative of an accused’s credibility. Other circumstances, apart from whether the previous convictions are for crimes of dishonesty, may be relevant to assessing the personal trustworthiness of a defendant, including the number of convictions and their proximity or remoteness to the time when the accused gives evidence.
[18] Moreover, in R. v. Hines, [2001] O.J. No. 1435 (S.C.), at para. 9, Dambrot J. emphasized, citing Charland, that in considering the probative value of a defendant’s prior convictions, it is not only serious crimes, such as crimes that demonstrate a lack of respect for human life and crimes of dishonestly that are relevant to credibility, although these are the most relevant prior offences.
[19] The applicant’s criminal convictions, eight in total, span two decades. There is a cluster of convictions from the early 1990s, followed by convictions for assault and mischief in 2002 and assault with intent to resist arrest in 2011. While there is a gap in time of 10 years between his anticipated testimony at trial and his last conviction, as well as a 10-year gap between his last conviction and those that preceded it, the age of the convictions is only one factor to take into account in assessing the probative value of the criminal record to the applicant’s credibility.
[20] In considering the fourth factor of Corbett, it is important, in a case such as this where the credibility and character of all the Crown’s witnesses was attacked beyond simply repudiating the allegations, that the jury be given a balanced and fair picture of the defendant. Cross-examination of the defendant on his prior criminal convictions would permit the jury to make a more informed assessment of the credibility of the competing versions of events.
[21] Here, there was a full attack on the credibility and character of the Crown witnesses. Unlike in other cases, such as N.A.P., at paras. 26-28, where the Crown elicited evidence which had the effect of neutralizing the attack (such as evidence of the defendant’s bad character), that has not happened in this case. The Crown did not present any evidence that put the applicant’s character in issue. The passing reference by J.M. to the applicant being a “pervert”, and a vague reference to abuse (both of which came out during cross-examination of the witness and not through examination in chief) do not amount to the applicant’s character being put in issue. While the use of the pejorative term “pervert” was unfortunate, it is no more than an expression by the witness, albeit crude, of the nature of the charges the applicant faces (a sexual offence committed by an adult male on children). Further, other than mentioning the word “abuse” in the course of explaining why she went to her mother with the allegations, J.M. gave no details of any abuse her mother may have experienced at the hands of the applicant. She was not asked any questions, either in cross-examination or in re-examination, about either of these parts of her evidence.
[22] As Dambrot J. noted in Hines, at para. 4, judges should err on the side of inclusion because concealing the prior criminal record of a defendant 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. See also Corbett, at para. 51. A jury could reasonably infer that a pattern of criminal convictions reflects a disregard for the law and rules of society, making it more likely that the person who harbours such attitudes would lie: R. v. Charland (1996), 1996 CanLII 7284 (AB CA), 110 C.C.C. (3d) 300, at p. 313 (Alta. C.A.), aff’d 1997 CanLII 300 (SCC), [1997] 3 S.C.R. 1006.
[23] In my view, the prior convictions, particularly the convictions for assault with intent to resist arrest, assault, choking, and assault with a weapon, while not crimes of dishonesty, are relevant to the applicant’s credibility. They are relevant because a jury could reasonably conclude that the convictions reflect a disregard for the law and rules of society and that a person who harbours these attitudes may lie: Charland.
[24] Considering the second factor in Corbett, it is also not the case that the prior convictions are so similar to the current allegations that to allow the Crown to cross-examine might lead to propensity reasoning by the jury that the applicant is the type of person who would commit the charges he faces. There is no overt violence alleged by either complainant, nor is there a sexual element to any of the applicant’s prior convictions. The charges which the applicant faces and the offences on his record are not similar.
[25] Finally, a clear instruction to the jury that they may not use evidence of the applicant’s prior convictions to conclude that the applicant is the type of person who would commit a sexual assault or sexual interference can effectively address any concern related to propensity reasoning.
[26] For these reasons, the application to exclude the applicant’s prior criminal convictions is dismissed. Should the applicant choose to testify, the Crown will be permitted to cross-examine him on his criminal record.
R. Maxwell J.
Released: August 10, 2021
COURT FILE NO.: CR 30000340-0000
DATE: 20210810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.W.
REASONS FOR JUDGMENT
R. Maxwell J.
Released: August 10, 2021