COURT FILE NO.: CRIMJ(F) 658/17
DATE: 2021 10 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
CHANEL BROWN
Applicant
Counsel: M. Hourigan, for the Respondent H. Aly, for the Applicant
HEARD: October 14, 2021
RULING ON CORBETT APPLICATION
FOWLER BYRNE J.
[1] Ms. Brown was being tried for one count of importing a controlled substance, contrary to s.6 the Controlled Drugs and Substances Act, S.C. 1996, c. 19. This offence is alleged to have occurred on September 5, 2016.
[2] At the end of the Crown’s case, the Accused applied for an order excluding Ms. Brown’s criminal record. In essence, her counsel requested an order preventing the Crown from cross-examining Ms. Brown on this criminal record.
[3] Ms. Brown has only one prior criminal conviction. On September 9, 2016, she was convicted of the unlawful possession of someone else’s identity document, contrary to s.56.1 of the Criminal Code, R.S.C., 1985, c. C-46. For this conviction, she received a suspended sentence and probation for 18 months.
Law
[4] Under s.12(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5 (“CEA”), a witness may be questioned, or cross-examined, as to whether or not they have been convicted of any offence.
[5] In the Supreme Court of Canada decision of R v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, it was held that this section of the CEA includes a discretionary jurisdiction to trial judges to prevent cross-examination on an accused’s criminal record where the potential prejudice of such cross-examination outweighs the potential probative value of it. This is done to ensure that the accused has a fair trial.
[6] Cross-examination of a witness, including an accused, on his or her criminal record is presumptively admissible. A judge may, in the exercise of their discretion, disallow cross-examination where they are satisfied that despite the safeguards available in the trial process, most especially a proper jury instruction, the potential prejudice flowing from that cross-examination is sufficient to justify exclusion of cross-examination on the record. Trial by jury assumes that as a general rule, juries will follow limiting instructions. That assumption must be given due weight when a trial judge is asked to exclude cross-examination in a “Corbett” application: R. v. Paul, 2009 ONCA 443, at para. 14.
[7] As outlined in R v. Singh, 2015 ONSC 7089, at para. 11, When determining whether to prohibit or limit questioning on an accused’s prior criminal record, the court is to consider a number of factors, which include:
a) The nature of the previous conviction(s);
b) the similarity between the previous convictions and the current charge;
c) The remoteness or nearness in time of the previous conviction; and
d) The appropriateness of limiting the cross-examination where the accused has attacked the credibility of the Crown witnesses and the case amounts to a credibility test between the accused and the Crown witnesses: See also R v. Brown, 2019 ONSC 1472, at paras. 10-14.
Analysis
[8] For the following reasons, Ms. Brown’s application is dismissed.
[9] Ms. Brown concedes that the prior conviction is for a crime of dishonesty. She was convicted of illegally using someone else’s identity documents. This is relevant to Ms. Brown’s credibility.
[10] There is no similarity between this current charge and the crime of which Ms. Brown was convicted. There is a low risk that a jury would conclude that because she was convicted of unlawful possession of identity documents, she would be more likely to import a controlled substance.
[11] The prior conviction is not that recent, but nor can it be considered remote. She was convicted of that crime five years ago, when she was approximately 32 years old. She is now 37 years old.
[12] Both parties agree that there has been little or no attack on the credibility of the Crown witnesses.
[13] Considering all of these factors, I do not find that the probative value of this evidence is outweighed by the prejudicial impact on Ms. Brown. Its probative value is high – it goes to whether Ms. Brown is a credible witness. Ms. Brown’s defence rests almost entirely on her credibility. The jury is entitled to a complete picture as to Ms. Brown’s credibility.
[14] That being said, Ms. Brown’s right to a fair trial must be protected. A proper balancing of these considerations can be achieved by an instruction to the jury that they are not to use this prior conviction for any propensity reasoning.
[15] As stated by Dickson J. (as he was then) in Corbett, at paras. 34-35:
[34] There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But 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.
[35] 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 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. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
[16] Accordingly, the application is dismissed. If the accused gives evidence, the Crown is entitled to cross-examine her on her previous conviction but only as to the actual charge of which she was convicted, the date and place of the conviction and the sentence imposed. A clear instruction on the limited use of this evidence will be included in the final charge to the jury.
Fowler Byrne J.
DATE: October 22, 2021
COURT FILE NO.: CRIMJ(F) 658/17
DATE: 2021 10 22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Respondent
-and-
Chanel Brown Applicant
RULING ON CORBETT APPLICATION
Fowler Byrne J.
DATE: October 22, 2021