SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 21-129

DATE: 20230201

RE: R. v. Abad Abdi Shire

BEFORE: Boswell J.

COUNSEL: Michael Flosman and Hanieh Azimi for the Crown

Alexandra Mamo for Mr. Shire

HEARD: January 18, 2023

RULING ON Mr. Shire’s Corbett Application

[1] Ryan Babineau and a number of his friends were gathered in a small apartment in downtown Barrie on the morning on November 16, 2019. The apartment was a drug house and they had been ingesting drugs all night long, including fentanyl and cocaine.

[2] Three men entered the apartment at roughly 7:00 a.m. It is agreed that those three men were Abad Shire, Cory Greavette and Tyler Wren. Within minutes, Mr. Babineau lay dead or dying from more than 60 stab wounds.

[3] Mr. Shire, Mr. Greavette and Mr. Wren were each arrested and charged with first degree murder. Those charges were later downgraded. Mr. Wren entered a guilty plea to being an accessory after the fact and has been sentenced. Mr. Greavette entered a guilty plea to manslaughter and has been sentenced. Mr. Shire proceeded to trial on a charge of second degree murder. The Crown asserts that he, or he and Mr. Greavette, inflicted the stab wounds that killed Mr. Babineau.

[4] The Crown’s case was completed as of January 17, 2023. Mr. Shire signalled a desire to testify. But he has a criminal record with some 36 convictions registered between December 13, 2011 and December 22, 2022. At least eight of those convictions involve offences of violence. He applied to the court for an order restricting the convictions that he could be cross-examined on by the Crown. An application of this nature is conventionally referred to as a Corbett application. See R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

[5] By way of brief oral reasons delivered on January 18, 2023, I granted Mr. Shire’s application and I ordered that his criminal record be redacted as requested by the defence. I undertook to provide written reasons in support of my ruling. These are the reasons.

The Governing Principles

[6] When an accused person testifies, he or she is, by and large, just like any other witness. I say “by and large” because accused persons benefit from a general protection against the Crown adducing evidence that he or she is a person of bad character, subject to certain recognized exceptions. Otherwise, he or she may be cross-examined by opposing counsel on any material issue in the proceedings. Where an accused has a criminal record, he or she may be cross- examined on it: Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, s. 12.

[7] The Supreme Court ruled in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, that trial judges have the discretion to exclude prejudicial evidence of prior convictions of an accused person in an appropriate case, notwithstanding the provisions of s. 12 of the Canada Evidence Act.

[8] In Corbett, former Chief Justice Dickson recognized that the “basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto.” (Para. 50). Justice LaForest, in dissenting reasons, picked up on the same theme, observing that the organizing principles of the law of evidence are straightforward. He stated them as follows:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[9] The prior criminal record of an accused person, including convictions for offences of violence, may have a direct bearing on the credibility of an accused person who chooses to testify. In other words, it may be relevant and probative evidence. In certain circumstances, however, the prior convictions of an accused person, while relevant, may be unduly prejudicial to his fair trial right. Where that is the case, the trial judge may restrict the extent to which the accused may be cross-examined on those prior convictions.

[10] To be clear, the direction from Corbett is that judges should start from the premise that juries should receive all relevant information, accompanied where necessary by an appropriate caution or limiting instruction. Orders restricting the jury’s access to information about the criminal record of an accused should be made only where there are clear grounds to do so: R. v. Mayers, 2014 ONCA 474, para. 5. That is not to say that the court’s discretion to restrict or limit cross-examination on the criminal record of an accused person should only be exercised in exceptional circumstances. The rule is that evidence of prior convictions is admissible in cross-examination of an accused person, subject to a discretion to exclude such evidence where its probative value is exceeded by its prejudicial effect: R. v. Charland, 1996 CanLII 7284 (AB CA), [1996] A.J. No. 819 (Alta. C.A.), at para. 19.

[11] While Justice LaForest dissented in the result in Corbett, he did not part ways with the majority on the governing principles to be applied in this type of application. He provided a number of factors that a court ought to consider in exercising its discretion. Those factors were set out at paras. 152-158 of the decision and include:

(a) The nature of the previous conviction(s). Keeping in mind that the limited use of the prior record relates to the assessment of the witness’s credibility, a conviction for perjury or other crimes of dishonesty are far more telling about a person’s honesty and integrity than is a conviction for assault;

(b) The similarity between the prior conviction and the index offence, having regard to the dangers of propensity reasoning;

(c) The proximity of the prior offence(s); and,

(d) Fairness to both the Crown and the accused. In this sense, where an accused attacks the credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view be left with the jury.

The Anticipated Defence Evidence

[12] For obvious reasons, Mr. Shire had not yet testified at the time I heard his application. His counsel provided a brief overview of what she anticipated his defence would be. In particular, she indicated that he would testify that, while present at the scene of the killing, he did not participate in it. He would say that Mr. Greavette, and only Mr. Greavette, stabbed Mr. Babineau. His anticipated evidence would directly contradict that of one of the Crown’s principal witnesses who testified that Mr. Shire and Mr. Greavette participated equally in the stabbing.

The Convictions in Issue

[13] Mr. Shire’s criminal record begins with Youth Court entries in December 2011 and continues, more or less unabated, to December, 2022. There are, in total, 36 convictions on his record. They include convictions for breach of probation (x4), breach of recognizance (x12), failing to attend court, forcible confinement, forcible entry, being unlawfully in a dwelling house, possession of a Schedule I substance of the purpose of trafficking, possession of a Schedule II substance for the purpose of trafficking, conspiracy to commit an indictable offence, obstructing a police officer (x4), theft under $5,000, robbery (x2), assault, assault with a weapon (x2), and assault causing bodily harm (x3).

[14] Mr. Shire seeks to limit the Crown’s cross-examination by redacting some eleven offences from the record that will go before the jury. They are the convictions for forcible entry, forcible confinement, robbery (x2), assault, assault with a weapon (x2) and assault causing bodily harm (x3).

[15] The Crown concedes a number of the redactions sought. In particular: (1) Youth Court convictions for forcible confinement, being unlawfully in a dwelling house and assault with a weapon, all dating back to December 13, 2011; (2) a Youth Court conviction for robbery entered July 12, 2012; and (3) a November 12, 2013 robbery conviction.

[16] In the result, only six convictions are in issue: one for forcible entry, one for assault, one for assault with a weapon and three for assault causing bodily harm.

Discussion

[17] It is undisputed that opposing parties are generally entitled to cross-examine an accused person on his or her full criminal record, should he or she elect to testify.

[18] As former Chief Justice Dickson held in Corbett, as above, at paras. 35-36:

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.

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 are to 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.

[19] Dickson, C.J.C., recognized, however, that an accused who testifies has a dual character. He is, like any other witness, subject to attacks on his credibility. At the same time, as an accused person, he is entitled to be shielded from evidence that does nothing more than blacken his character. A balance must be struck. That balance involves a weighing of the probative value of the evidence intended to be used to attack credibility against the prejudice likely to be occasioned by the introduction of such evidence.

[20] I will therefore begin with an examination of the probative value of Mr. Shire’s criminal antecedents.

Probity

[21] Credibility is very much a live issue in this case, as it is in most cases. The Crown produced a witness, Melanie Rothon, who testified that she witnessed both Mr. Shire and Mr. Greavette stab Mr. Babineau repeatedly. Mr. Shire’s counsel vigorously challenged Ms. Rothon in cross-examination, pointing out numerous inconsistencies between her trial testimony and statements she has previously made, whether to the police or at the preliminary hearing. To be fair, the attack on Ms. Rothon’s evidence was largely grounded in concerns about the reliability of her evidence. She is a recovering opioid addict, was high on fentanyl at the time of the incident, and suffered a stroke at some point prior to trial that has impaired both her short and long-term memory.

[22] Mr. Shire’s counsel also questioned Ms. Rothon about her not insignificant criminal record and a copy of it was marked as an exhibit at trial. That said, the cross-examination on Ms. Rothon’s record was minimal.

[23] As I noted, at the time this application was argued, Mr. Shire’s testimony was expected to directly contradict Ms. Rothon’s account of the events in issue. His credibility and reliability would be squarely in issue in the trial.

[24] This is a murder trial. The stakes are high. The Crown understandably wants to leave no stone unturned in challenging the credibility and reliability of Mr. Shire’s account of the events in issue. The Crown will be asking the jury to completely reject his account.

[25] The content of Mr. Shire’s criminal record is relevant to the jury’s assessment of his credibility. It is presumptively fair game. As Doherty J.A. expressed in R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695, at para. 76:

Cross-examination on prior criminal convictions is permitted under s. 12 of the Canada Evidence Act on the theory that the existence of previous criminal convictions may render a witness less credible. A criminal record, particularly one with multiple entries for crimes of dishonesty, suggests a lifestyle and character which may impugn a witness's overall veracity and lead to the conclusion that the witness's testimony is not credible: R. v. Corbett, supra, at pp. 685-86 S.C.R., pp. 395-96 C.C.C.

[26] Having said all of that, the Supreme Court recognized in Corbett that certain types of convictions are more significant than others in terms of the assessment of credibility. Crimes of dishonesty, for instance, may say more about a person’s veracity than do crimes of violence. That is not to say that crimes of violence are incapable of impacting on a witness’s credibility. To the contrary, a number of convictions for assaults and other offences may provide reasonable support for an inference that the accused witness has a general disregard for the laws and rules of society. Such a person may be more likely to lie.

[27] Mr. Shire has 36 prior convictions. If I redact all of the convictions for violent offences as requested by his counsel, there will remain 25 convictions on his record. Those include convictions for theft, obstruction of justice and sixteen breaches of probation orders and recognizances. In other words, even if the six violent convictions in issue are redacted, the remaining convictions will still leave a strong impression of an individual who has a demonstrated disregard for court orders and the rule of law in general. They will make a strong statement about his credibility.

[28] Undoubtedly, the addition of a further six offences would leave an even stronger impression about Mr. Shire’s lack of respect for law and order. But in my view, they will not substantially add to the equation. If this were a case where the entries sought to be redacted were all or substantially all of Mr. Shire’s prior convictions, then the landscape would be considerably different. In that case, redacting all of Mr. Shire’s criminal antecedents would leave the jury with a distorted image of him. But in this case, even if the redactions are made as requested, the Crown will still have a good deal to work with in terms of Mr. Shire’s history of criminality.

[29] I conclude that while the six convictions in issue are capable of supporting an inference that Mr. Shire has little, if any, respect for the law, the balance of his convictions are equally capable of supporting that inference. In the result, the probative value of the impugned convictions is modest.

Prejudice

[30] The potential prejudice associated with the convictions in issue, however, cannot be described as modest. Mr. Shire is on trial for an extremely violent offence. The unlawful act that led to Mr. Babineau’s death was, indisputably, an assault with a weapon. Two of the six convictions in issue were for that very offence. Another three were for assault causing bodily harm. These convictions tend to strongly support an inference that Mr. Shire has a propensity for violence.

[31] In the context of Mr. Shire’s defence, in which he will point to Mr. Greveatte as the lone assailant, evidence that Mr. Shire had a propensity for violence is hugely prejudicial, particularly in light of the fact that the jury will have no evidence of Mr. Greavette’s propensity, if any, for violence.

[32] The risk that the jury may engage in impermissible propensity reasoning is palpable.

[33] Had Mr. Greavette and Mr. Shire been tried jointly, it is likely that counsel to Mr. Greavette would have been able to put all of Mr. Shire’s criminal antecedents to him in cross-examination. A co-accused is not subject to the same prohibition on the introduction of propensity evidence as the Crown. Even then, however, the jury could only use that evidence in determining whether they had a reasonable doubt about Mr. Greavette’s participation in the alleged offence. The Crown could not rely upon it as proof of guilt against Mr. Shire. See R. v. Pollock, 2004 CanLII 16082 (ON CA), [2004] O.J. No. 2652, at para. 103.

[34] But of course Mr. Greavette is no longer before the court. And Mr. Shire has a constitutional right to be shielded from evidence which unfairly prejudices him.

[35] In my view, evidence of the prior convictions for serious violent offences will unfairly prejudice Mr. Shire because they so strongly support the conclusion that Mr. Shire has a propensity for violence. Evidence of such a propensity will give rise to both moral and reasoning prejudice.

[36] A clear limiting instruction may, of course, be provided to the jury about the way in which they may consider the prior convictions and the way(s) in which they must not consider them. Such an instruction will go a long way to attenuating the prejudice associated with the evidence. Courts can and do proceed on the assumption that juries accept and follow the instructions given to them by trial judges. See R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100, at para. 128. In the particular circumstances of this case, however, it would be difficult for the jury to disabuse themselves of the knowledge that Mr. Shire has a history of serious violent criminality when they are assessing his evidence that it was Mr. Greavette alone who stabbed Mr. Babineau.

[37] Even with a limiting instruction, the prejudice to Mr. Shire’s fair trial right remains, in my view, significant.

The Balance

[38] In the end, I find that the balancing of probity and prejudice favours the redactions sought by the defence. Given Mr. Shire’s substantial criminal record, evidence of a history of violent criminality is not necessary to establish that he has a demonstrated lack of respect for the law and the rules of society. In the result, the impugned convictions are not significantly probative of Mr. Shire’s credibility. At the same time, they are highly prejudicial in view of their strong tendency to support a propensity on Mr. Shire’s part to engage in serious violence.

[39] The defence application was granted for the foregoing reasons. Mr. Shire’s criminal record was redacted as requested.

C. Boswell J.

Date: February 1, 2023