Her Majesty the Queen v. Philip Fitzpatrick and Evan Wright

COURT FILE NO.: CR-20-307-00 DATE: 2022-03-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Coughlin and P. Maund, for the Crown

- and -

PHILIP FITZPATRICK and EVAN WRIGHT S. Caramanna and C. Laperriere, for Mr. Fitzpatrick J. Goldlist and M. Bavaro, for Mr. Wright

HEARD: January 25, 2022

RULING ON CORBETT APPLICATION

Justice André

[1] The accused, Mr. Evan Wright, who, along with Philip Fitzpatrick, is charged with first degree murder brings an application to exclude his criminal records from the evidence at trial. He maintains that the prejudicial effect of the jury learning about his criminal record significantly outweighs any probative value it may have.

BACKGROUND FACTS

[2] On June 21, 2018, a person or persons kicked down the front door of the basement apartment of Brandon Hall and fatally shot him. Following a lengthy investigation, the police arrested both accused on November 2, 2018, and charged them with first degree murder.

[3] At the conclusion of the Crown’s case, counsel for both accused advised the court that they would be bringing a Corbett application to exclude the criminal records of the accused from the evidence at trial. Mr. Caramanna later advised the court that Mr. Fitzpatrick would not be bringing an application after all.

CRIMINAL RECORDS

Criminal Record of Mr. Wright

Criminal Convictions Conditional and Absolute Discharges and Related Information

Date	Offence	Disposition
2019-05-09	AGGRAVATED ASSAULT	2 YRS (6 MOS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC
MILTON ON	SEC 268 CC
2020-01-16	(1) POSS OF A WEAPON	90 DAYS CONC
MILTON ON	SEC 88(1) CC
	(2) POSS OF A WEAPON
	SEC 88(1) CC

APPLICABLE LEGAL PRINCIPLES

[4] Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, allows a party to cross-examine any adverse witness on their criminal record if they choose to testify.

[5] In R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.), Justice Martin noted that, “the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness” (noted in R. v. Corbett, [1988] 1 S.C.R. 670, at para. 22).

[6] In R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), the Court of Appeal noted at p. 342 that the “fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness” (noted in Corbett, at para. 23).

[7] Accused persons can only be examined on the facts underlying a criminal conviction and not on the conduct that resulted in the conviction: Stratton, at p. 467.

[8] In his dissenting opinion in Corbett, Justice La Forest listed the following four factors that are relevant to the exercise of judicial discretion (at paras. 152-161). Justice Smith referred to these factors in R. v. Gill, 2008 BCSC 96, at para. 11:

1. the nature of the previous conviction (La Forest J. referred to Gordon v. U.S., 383 F. 2d 936 at 940 (1967), which states that acts of deceit, fraud, cheating or stealing will reflect adversely on a person's honesty and integrity, while acts of violence generally have little or no direct bearing on honesty and veracity);
2. the similarity of the previous conviction to the conduct for which the accused is on trial (the more similar the prior offence, the greater the prejudice harboured by its admission);
3. the remoteness or nearness in time of the previous conviction to the present charge (and whether the accused has led a legally blameless life for a period of time since the conviction); and
4. the risk of presenting a distorted picture to the jury (which may arise where there has been a deliberate attack upon the credibility of a Crown witness and where the resolution of the case boils down to a credibility contest between the accused and that witness).

See also R. v. R.J.B., 2014 BCSC 2627, at para. 6; R. v. Pattison, 2011 BCSC 1408, at para. 17; and R. v. Batte (2000), 145 C.C.C. (3d) 498, 34 C.R. (5th) 263 (Ont. C.A.), at para. 48.

[9] In Corbett, the majority of the Supreme Court of Canada ruled in favour of inclusion of a prior murder conviction in a case where the accused was charged on first degree murder. The court held that although the prejudicial effect of admitting this evidence was significant, the prejudice could be countered by an appropriate instruction to the jury about the impermissible use of the record. Chief Justice Dickson further noted at para. 36 that: “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.”

[10] In R. v. N.A.P. (2002), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 20, Justice Doherty noted the following:

There is no presumption against the admissibility of the accused’s criminal record where he or she chooses to testify. To the contrary, as indicated by the majority in R. v. Corbett, supra, cross-examination on a criminal record of an accused who chooses to testify will be the usual course.

[11] In Corbett, Chief Justice Dickson, for the majority, noted at p. 686 that:

When a defendant goes onto a stand, he takes his character with him. Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving "dishonesty and false statement."

[12] Justice La Forest further noted in Corbett at p. 741, that:

Clearly, too, the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission. I agree fully with the opinion of the court in Gordon, supra, at p. 940, that:

A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time". As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. [Italics added by La Forest J., underlining added by Ryan J.A.]

[13] The potential prejudice of such evidence is the risk of the jury concluding that the accused is the type of persons likely to have committed the offence to which he has been charged and, therefore, committed that offence.

[14] In R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.), the Ontario Court of Appeal noted the following at paras. 10 – 14:

10 The balancing exercise is a particularly difficult one in this case. The relevant factors point to both probative value and prejudice. The accused's prior record discloses a conviction for attempted murder in 1988, some four years prior to the trial at issue here. That was his only prior conviction. A conviction for attempted murder cannot be dismissed as having little probative value on the credibility of a witness. Although it is not a so-called offence of dishonesty, which may be probative of deception, attempted murder is such a serious offence that, in itself, it may be taken to indicate that the prospect of a conviction for perjury is unlikely to keep the witness in line. More significantly, it would be open to a jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life.

11 On the other hand, of course, a conviction for attempted murder shows a capacity for violence against the person, and, on a charge of aggravated assault and assault causing bodily harm invites an inference of guilt through disposition. Not only is the offence for which the appellant was previously convicted very similar to the one that he was facing at trial, but, being of a more serious nature, it would logically support an inference that if the appellant once attempted to kill someone, he would not likely hesitate to commit the types of assaults that he was alleged to have committed.

12 Since the conviction for attempted murder was the appellant’s sole prior conviction, this is not a case where one could conveniently excise from his record the prejudicial entry and leave the jury with some appreciation of the diminished credibility of the witness in light of past convictions.

13 In the end, guidance comes from the Corbett decision. In that case, the majority of the Supreme Court ruled in favour of inclusion, in conformity with s. 12 of the Canada Evidence Act, of a prior murder conviction when the accused was facing a charge of first degree murder. Although the potential for prejudice was recognized as significant, the Supreme Court held that the potential prejudice could be displaced by a proper instruction to the jury about the impermissible use of the prior record. It is conceded that such proper instruction was given in the present case. As in Corbett, we are of the opinion that the deletion of the appellant’s record would leave the jury with incomplete and therefore incorrect information about his credibility as a witness. To deprive the jury of that information in the present case, would hinder the jury’s ability to correctly appreciate the facts. On balance, we think that the probative value of the appellant’s criminal record of the question of his credibility as a witness outweighs the potential risk that the jury might use that prior conviction as evidence that the appellant is the type of person likely to have committed the offences with which he was charged.

14 For these reasons, we are of the opinion that the criminal record was properly admitted as evidence.

ANALYSIS

[15] The issue in this hearing is whether Mr. Wright’s criminal record should be the subject of cross-examination by the Crown.

[16] On behalf of Mr. Wright, Ms. Goldlist submits the following:

a) There is an argument to be made that at the time of the murder Mr. Wright had no criminal record. Consequently, the Crown should not be allowed to cross-examine him on convictions which post-dated the offence before this court;

b) In the event that the court finds that Mr. Wright can be cross-examined on this record, then the charge of aggravated assault should be “read down” to one of assault causing bodily harm to reduce the prejudice which would flow from the jury being advised about this conviction. This would strike an appropriate balance between any probative value the record may have and the potential prejudice which may flow from its admission;

c) Mr. Wright’s convictions on the two counts of possession of a weapon are irrelevant to an assessment of his credibility. Admission of this evidence would create a significant imbalance in that it would raise the ugly spectre of propensity reasoning in this trial; and,

d) The convictions for possession of a weapon should be excised because the defence has attacked the credibility of the Crown’s main witness, Mr. Marquis Grant-Mentis, rather than his character. To that extent, there is no legal justification for Mr. Wright’s criminal record to be elicited during the trial, particularly given the potential prejudice which the evidence could have in the trial.

A. Should Mr. Wright be cross-examined on convictions which post-dated the charge of first degree murder for which he is before this court?

[17] In my view, the fact that Mr. Wright’s convictions for criminal offences postdate the charge of first degree murder is not a bar to the admission of his criminal record. Indeed, s. 12(1) of the Canada Evidence Act states that a witness may be questioned as to whether the witness has been convicted of any offence. Therefore, the section does not limit such questioning to convictions that predate the offence. It applies to all convictions at the time of the accused’s trial.

[18] Second, in R. v. C.S., 2013 ONSC 5797, the trial judge noted the following at para. 16:

The fact that C.S. committed the offence of first degree murder approximately 18 months after the offences that he is alleged to have committed in this case, is not in my view a relevant factor. …. It matters not that it came after the alleged assault on R.F.

B. Should the charge of aggravated assault in Mr. Wright’s criminal record be “read down” to a charge of assault causing bodily harm?

[19] Mr. Wright’s counsel suggests that if the jury is advised that Mr. Wright was convicted of this charge this disclosure would create a significant imbalance which would affect trial fairness in this matter.

[20] I disagree for the following reasons. First, it is not the charge itself which would alert the jury that this was a serious charge but the disposition which Mr. Wright received which was a sentence of two years incarceration. This disposition, rather than the charge, clearly suggests, even to a lay person, that the charge he was convicted of was serious. To that extent, I do not agree that reading down the charge would achieve any discernible result in this trial.

[21] Third, as the Crown has pointed out, courts have had little difficulty in refusing to exclude offences from the criminal record of an accused even where the record contains one conviction which was either as serious or significantly more serious than the charge before the court. This is true in the C.S. case where the accused had a single conviction for first degree murder and in Corbett where the accused has also been convicted of murder. Similarly, in R. v. Bush, 2017 ONSC 7050, a case where the accused had been charged with attempted murder, robbery, and forcible confinement, Justice Beaudoin noted at para. 20 that the “fact that he has been convicted of three murders is highly probative.” The court concluded that any prejudice flowing from the admission of this evidence “can be addressed through a properly worded instruction.” Finally, in Saroya, the Court of Appeal upheld a trial judge’s decision to admit the accused’s criminal record which contained one entry for attempted murder on the ground that “the probative value of the appellant’s criminal record on the question of his credibility as a witness outweighs the potential risk that the jury might use that prior conviction as evidence that the appellant is the type of person likely to have committed the offences with which he was charged.”

[22] Ms. Goldlist relies on the case of R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, where the Court of Appeal upheld a trial judge’s decision to prevent cross-examination of an accused on part of his record which contained convictions for crimes of violence. The trial judge was concerned that if the jury heard that the respondent had eight prior convictions for assault-related offences over several years, it would conclude, despite instructions to the contrary, that he had a propensity for violence. The Court of Appeal concluded at para. 36, that it was open to the trial judge to conclude that cross-examination on these additional crimes would add precious little to the jury’s ability to assess the respondent’s credibility.

[23] In Talbot, the accused had a record consisting of 25 convictions for assault related offences. The trial judge concluded that the probative value of the evidence of the criminal record would not be materially reduced if she excluded reference to the crimes of violence. This cannot be done in this case. Mr. Wright’s convictions all involve violence. Excluding these convictions would present a distorted or misleading picture to the jury (Corbett, at paras. 35-36).

C. Should Mr. Wright’s two convictions on the count of possession of a weapon be excluded from the evidence?

[24] Mr. Wright’s counsel submits that they should. She submits that none of the Crown’s witnesses have been challenged on their criminal record. Neither did she attack the deceased’s criminal record. To that extent, eliciting evidence of Mr. Wright’s two convictions for possession of a weapon is not only irrelevant but creates an imbalance. Additionally, the defence did not attack the character of any of the Crown’s witness.

[25] Ms. Goldlist relies on the following passage in R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 46 in support of her position:

There 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. The attack on the Crown witnesses in the appellant’s case was directed at the lack of credit of their accounts of the events, not their character and certainly not their character for criminal conduct.

[26] In my view, the facts in Batte are different from that in this case. There, defence counsel questioned the veracity of the complainant’s testimony in a sexual assault trial. In this case, the cross-examination of Mr. Grant-Mentis involved questioning his character for criminal conduct. Here, defence counsel not only put to him that he was a pathological liar, which could be construed as an attack on his credibility, but that he was the person who had masterminded Mr. Hall’s murder. His character was also put in issue because of suggestions that he attended neither the funeral home to see his friend, the deceased, nor Mr. Hall’s funeral.

[27] For the above reasons, the distinction by Ms. Goldlist regarding the attack of the credibility rather than the character of Mr. Grant-Mentis does not hold in this case.

[28] That said, I have concerns that in this case, where the live issues include who killed Mr. Hall and why, the fact that Mr. Wright’s record only includes convictions for violence may have a great impact on the reasoning process of the jury, despite any limiting instruction. To echo a statement of Justice Boswell in R. v. Hong, 2015 ONSC 4865, at para. 98: “Antipathy towards Mr. Cain may very well be generated by the knowledge that he has so many convictions for assault.” This is more apparent in this case since Mr. Grant-Mentis, who has been identified by the defence as the shooter, has no criminal record.

CONCLUSION

[29] In conclusion, while the convictions for violence are relevant to the issue of credibility, they are not similar to the conduct for which Mr. Wright is on trial and are recent rather than remote. I am concerned that exposing the jury to Mr. Wright’s full record would increase the potential of propensity reasoning in this case, despite a limiting instruction. To that extent, cross-examination on Mr. Wright’s criminal record will be limited to his conviction for aggravated assault only.

André J. Released: March 24, 2022