Court File and Parties

COURT FILE NO.: CR-18-163 DATE: 2024-03-19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Scott, for the Crown Applicant

- and -

MARK CHAMPAGNE Self represented, N. Rozier as Amicus Curiae Respondent

HEARD: October 5, 2021

Reasons for Corbett Application Ruling

SKARICA, J: (Orally)

[1] Mark Champagne is charged with second degree murder of his common-law spouse Natasha Thompson. The Crown alleges that the accused shot and killed Natasha Thompson with the intent to kill her. At the beginning of the trial the accused entered a plea of not guilty to second degree murder, but guilty of the lesser and included offence of manslaughter. In its Corbett application, the defence concedes that Mark Champagne shot Natasha Thompson multiple times and that she died as a result. However, Mark Champagne denies he had the requisite intent for second degree murder.

Issues

[2] In his application, the defence seeks the following orders pursuant to R. v. Corbett 1988 1 SCR 67.

1. A ruling to edit excised portions of the prior record of adjudications pursuant to the Young Offenders Act and adult convictions of Mark Champagne.

2. A ruling that the proper scope of cross-examination is as permitted pursuant to s. 12 of the Canada Evidence Act articulated in R. v. Laurier, [1983] O.J. No. 195 (ONCA), in paragraph 10:

   “In cross-examining the accused about his prior criminal record, Crown Counsel is entitled to ask for the name of the crime, the substance and effect of the indictment, the place of the conviction, and the penalty, but he or she is not entitled to cross-examine the accused about the details of the offences.”

Facts

[3] Mark Champagne’s criminal record consists of 17 convictions, obtained both as an adult and as a youth record.

[4] I will deal with the adult and the youth record separately.

Adult Record

[5] Mark Champagne’s adult criminal record consists of the following 10 convictions:

1996, in Toronto - possession of an unregistered restricted weapon, possession of property obtained by crime under $5,000;

2000 - Assault with a weapon - 2 charges, assault with a weapon, attempt murder, aggravated assault, fail to comply with a recognizance - 2 charges. He received a sentence at that time of, in excess of 13 years in the penitentiary; and

finally, February 13, 2005 – Assault police officer. He received 3 months consecutive.

Youth Record

[6] Mark Champagne’s youth record consists of the following 7 convictions:

Toronto, 1993 – Possession of a narcotic;

April 20, 1993, in Toronto – Possession of a narcotic - 2 charges, and a fail to comply with a recognizance;

April 23, 1993 – Possession of property obtained by crime, dangerous operation of a motor vehicle; and

finally, 1993 – Possession of a narcotic.

[7] I’ll deal with the adult record first.

Law

[8] In the case of R. v. Barreira, [2017] O.J. No. 2456 (ON SCJ), also 2017 ONSC 2478, I summarized the rationale underpinning the Corbett decision as follows at paragraphs 13 and 14 of Barreira:

At paragraph 13:

The leading case is R. v. Corbett. That was a case where the accused was charged with first degree murder while he was on parole for a charge of non-capital murder. The accused testified at trial. The Supreme Court of Canada held that the accused could be properly cross-examined on his murder conviction with an appropriate jury instruction. Chief Justice Dixon in Corbett indicated at paragraphs 22-24, 33-35, 37, and 47-51 as follows...

Paragraph 22:

The rationale for s. 12 [of the Canada Evidence Act] has been explicit in the case law. See R. v. Stratton, per Martin J.A., “Unquestionably the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or convictions is a relevant fact in assessing the testimonial reliability of the witness.”

Paragraph 23:

Similarly, in R. v. Brown, per Martin J.A., “The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness.”

[9] That was paragraph 23 of Corbett.

Paragraph 24:

An American court identified the rationale behind a similar rule in the following language:

What a person is, often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense 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.”

Paragraph 33 of Corbett:

It is my view that on the facts of the present case, a serious imbalance would have arisen had the jury not been apprised of Corbett’s criminal record. Counsel for Corbett vigorously attacked the credibility of the Crown witnesses and much was made of the prior criminal records of Marcoux and Bergeron. What impression would the jury have had if Corbett had given his evidence under a regime whereby the Crown was precluded from bringing to the jury’s attention the fact that Corbett had a serious criminal record? It would be impossible to explain to the jury that one set of rules applies to ordinary witnesses, while another applies to the accused, for the very fact of such an explanation would undermine the purpose of the exclusionary rule. Had Corbett’s criminal record not been revealed, the jury would have been left with the quite incorrect impression that, while all the Crown witnesses were hardened criminals, the accused had an unblemished past. It cannot be the case that nothing short of this entirely misleading situation is required to satisfy the accused’s right to a fair trial.

Paragraph 34:

There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more of it than they 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.

Paragraph 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 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 of the 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.

Paragraph 37:

One can now add on the accused's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial.

Paragraph 47:

If risk that the jury might misuse evidence were enough to render such evidence inadmissible in all cases, then in each of the situations just identified, the evidence would have to be excluded. Yet the risk of error inherent in depriving the jury of such information is so strong that the balance is struck by allowing the evidence to be received, subject to the trial judge's discretion, but at the same time insisting on a careful direction from the trial judge as to the permissible conclusion or inferences which may be drawn. As it was put in an American decision, State v. Anderson, "If we are to continue in our belief that a trial by a jury of 12 peers offers the fairest determination of guilt or innocence, then we must credit the jury with the intelligence and conscience to consider evidence of prior convictions only to impeach the credibility of the defendant if it is so instructed." Similarly, in State v. Ruzicka, Hamilton J. stated: "We are not convinced that juries either cannot or willfully do not follow the court's instructions to use evidence of a defendant's prior criminal record only in weighing the defendant's veracity on the witness stand."

Paragraph 48:

It is worth noting as well that it would be quite wrong to view this aspect of s. 12 and evidence in relation to prior convictions in isolation. Judicial decisions have carefully circumscribed the extent to which the Crown may use prior convictions. It has been held, for example, that the accused may be examined only as to the fact of the conviction itself and not concerning the conduct which led to that conviction (a variety of cases were referred to, including R. v. Laurier). Similarly, it has been held that an accused cannot be cross examined as to whether he testified on the prior occasion when convicted in order to show that he is one who was not believed by a jury on a previous occasion. The Crown is not entitled to go beyond prior convictions to cross examine an accused as to discreditable conduct or association with disreputable individuals to attack his credibility. Unless the accused takes the stand, the Crown is not permitted to adduce evidence of prior convictions, even if the accused has launched an attack on the character of Crown witnesses. It has been held that an accused may be cross examined only as to "convictions" strictly construed and that there can be no cross examination where the accused was found guilty and granted a conditional discharge, conditions subsequently having been fulfilled.

Paragraph 49:

These limitations on the use of prior convictions, together with the discretion recognized by the reasons of La Forest J., demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of prejudicing an accused's trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question. Within this context, it cannot be said that s. 12 of the Canada Evidence Act operates in such a way as to deprive the accused of the right to a fair trial.

Paragraph 50:

I agree with my colleague, La Forest J., that 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. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be made on the side of inclusion rather than exclusion and our efforts, in my opinion, consistent with the ever increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion.

Paragraph 51:

I agree with La Forest J. that the trial judge has a discretion to exclude prejudicial evidence of previous convictions in an appropriate case.

[10] Justice La Forest in his dissent in Corbett,] listed four non-exhaustive factors that are relevant [in this exercise]. These factors are summarized in Barreira at paragraph 16 as follows:

Paragraph 16 (of Barreira):

Justice Smith in R. v. Gill, 2008 BCSC 96, at paragraph 11, summarized the “La Forest factors” in Corbett as follows:

“The majority agreed that the factors identified by La Forest J., dissenting (who would have excluded cross-examination of Corbett on his record), were useful. The same factors have been referred to consistently in the authorities since Corbett. Those factors, bearing on the probative value of prejudicial effect of a previous conviction are:

1. the nature of the previous conviction. (La Forest J. referred to Gordon v. U.S. 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).”

[11] Regarding that fourth factor, Justice La Forest in Corbett expands a bit on that summary at paragraph 159 of Corbett.

Paragraph 159:

One further, and to my mind, problematic factor that often surfaces in the case law of both countries (as it does in the present case) is whether it is fair not only to the accused but to the prosecution to prohibit cross examination respecting previous convictions, especially when a deliberate attack has been made 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. [This issue has arisen in a variety of English cases, or referred to.]

[12] In considering the English cases, however, it should be noted that s. 1(f) of the Criminal Evidence Act, 1898, specifically provides (subject, as we saw, to the overriding discretion to exclude) that an accused's shield from cross examination is lost when he casts aspersions on the character of the prosecutor or his witness, so emphasis on this factor is perhaps particularly justifiable.

[13] The onus is on the accused to establish that the criminal record should be edited. Cross-examination on a criminal record of an accused who chooses to testify will be the usual course (see R. v. Madrusan, 2005 BCCA 609, paragraphs 27, 28; Barreira at paragraph 20; and R. v. N.A.P., [2002] O.J. No. 4829, a decision of Ontario Court of Appeal at paragraph 20; and most recently R. v. R.D., 2019 ONCA 951 at paragraph 13).

[14] The most serious conviction in the accused criminal record is attempt murder. The Ontario Court of Appeal in R. v. R.D. has recently reconfirmed that a conviction for attempt murder has significant value in the credibility analysis. Justice Hourigan indicates at paragraph 15 of R.D., as follows:

Paragraph 15 (this is Paragraph 15 of R.D.)

On appeal, Doherty J.A., writing for the court, ruled that the trial judge made an error in principle in her ruling on the Corbett application, which necessitated this court reviewing the merits of the application afresh. Doherty J.A. referenced R. v. Saroya (1994), 76 O.A.C. 25, (Ont. C.A.) for the proposition that a conviction for attempted murder has significant probative value in a credibility analysis. Attempted murder is such a serious offence that it may indicate a conviction for perjury is unlikely to keep the witness honest. It is also open to the jury to find that the witness is unlikely to have more respect for the truth than he or she has shown for a human life.

[15] In Barreira, I also reference R. v. Saroya as follows, in paragraph 19.

Paragraph 19 (of Barreira):

In R. v. Saroya (1994), 76 O.A.C. 25, the Ontario Court of Appeal provided another example of the balancing exercise between probative value and prejudicial effect. The Court held, at paragraphs 10-14:

Paragraph 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 of 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 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.

Paragraph 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 to which the appellant was previously convicted very similar to the one he is 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.

Paragraph 12:

Since the conviction for attempted murder was the appellant’s sole prior conviction, this is not a case that 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 the light of past convictions.

Paragraph 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 is 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.

Paragraph 14:

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

[16] Similar to the decision in Saroya, I have some concerns that the accused’s record for violence invites an inference of guilt through disposition. However, as indicated in both Saroya and Corbett, any potential prejudice can be displaced by a proper instruction to the jury.

[17] I have also considered the issue of remoteness of the convictions. Given the balancing act I must engage in, and the Corbett factors as referred to by La Forest, J., I find that the probative value of the current convictions is not outweighed by their remoteness. Relevant to the issue of remoteness is the fact that the accused has no convictions after 2004. However, this is in part due to a 12-to-13-year sentence imposed in 2000, after a credit of 3 years and 6 months of pre-sentence custody (See R. v. Charland, 1996 ABCA 301, paragraph 35). Further amicus referred me to R. v. M.C., 2019 ONCA 502, Justice Watt, at paragraph 87 in that decision, did not need to consider the Gladue principles on the exercise of the Corbett discretion under s. 12 of the Canada Evidence Act. I agree with Justice Watt’s comments at paragraph 76 of M.C., that Gladue deals with sentencing principles and beyond the sentencing context, the reach of Gladue principles has been limited. In my opinion, the Gladue principles would not alter the decision that I have made having regard to the factors outlined in Corbett. Neither would the other two cases referred to me; both sentencing cases. And they are: R. v. Anderson, 2021 NSCA 62; and R. v. Jackson, [2018] O.J. No. 2316 (ON SCJ).

Application of the Law to the Facts

[18] In my opinion, the entirety of the accused’s adult record is admissible to be received in evidence and cross-examination for the following reasons:

1. Pursuant to the case law mentioned, serious convictions for attempt murder, aggravated assault, assault with a weapon, and weapons convictions, indicate that the prospect of a perjury conviction is unlikely to keep the witness in line. It would be open for the jury to conclude that the witness is unlikely to have more respect for the truth than he has shown for human life. (For support for these propositions; see Saroya at paragraph 10, R. v. R.D. at paragraph 15, R. v. N.A.P., [2002] O.J. No. 4829 (ONCA), at paragraph 23, and R. v. Gagnon, [2000] O.J. No. 3410 at paragraph 74, a decision of the Ontario Court of Appeal.)
2. The “Possession of Property Under $5000” conviction, is a conviction for dishonesty that relates to Mr. Champagne’s credibility. (See Corbett at paragraph 154.)
3. The “Fail to Comply Recognizance” and “Assault Police” convictions along with the other convictions for violence and weapons, indicate a “lack of trustworthiness that may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey.” (See Corbett at paragraphs 23, 24, and Charland at paragraph 35.)
4. The accused has cross-examined two Crown witnesses (ironically both named Corbett), Steve and Tim Corbett, on their criminal records in order to attack their credibility. The accused further, has challenged the integrity of the police investigation particularly in the cross-examination of Detective Johnson. Further the accused has referred to some other Crown witnesses as liars or lying, with little justification to back that up. It is open for me to conclude that by attacking the credibility and character of some of the Crown witnesses and the police investigation, it is appropriate to allow for the cross-examination of the accused’s entire adult criminal record. (For authority, see R. v. Ling, 2016 ONCA 184, paragraph 30-31, and R. v. Thompson, [2000] O.J. No. 2270 (ONCA), at paragraph 29, and R. v. N.A.P. at paragraph 26.)
5. Accordingly, I conclude that cross-examination of Mr. Champagne’s adult criminal record has probative value that exceeds any prejudice and that any potential prejudice can be addressed through a properly worded instruction at the jury. (See R. v. Bush, 2017 ONSC 7050 at paragraph 20.)

[19] Now, dealing with the youth record:

[20] There are a number of Ontario Superior Court decisions where judges have not allowed cross-examination of the youth records, pursuant to s. 12 of the Canada Evidence Act. (See Barreira at paragraph 21, for discussion of these authorities.)

[21] At paragraph 25, 27, and 28 of Barreira, I held as follows:

Paragraph 25:

Further, regarding youth and adult records, the similarity of the convictions on the youth and adult records is a factor to be considered in a Corbett analysis. Justice Archibald (in R. v. Hall, 2011 ONSC 6526) indicated at paragraph 14:

“The youth record, on the other hand, is 18 years old. It comprises offences which mirror his adult convictions in 1999. As previously indicated, the Crown did not press for the admission of the youth record. In weighing all of the circumstances, the introduction of the accused’s entire criminal adult record outweighs any need for the further introduction of his youth record, given its age, the similarity of the nature of the offences as a youth to the offences committed as an adult, and the fact that he was a youth at the time. No distortion of any kind will be created by the excision of the youth record. No unfairness to the Crown’s case is created by the excision of the youth record. The introduction of the youth record adds nothing to the analysis of the accused credibility by the jury and may distract them from the task at hand.

[22] Justice Archibald indicates that, a trial Judge may exclude all or part of an accused’s criminal record as part of the discretionary process. An Appeal Court will not review the correctness of that decision. The Appeal Court will only interfere if there has been an error in principle or misapprehension of relevant evidence, or if the exercise of discretion is unreasonable.

Paragraph 27 (of Barreira):

Further, the youth record consists, and now dealing with the specifics of the individual Brandon Barreira, his youth record, I indicate that:

...Brandon Barreira’s youth record consists mainly of breach of Court orders and drug possession convictions. Breach of Court order convictions are also represented in the adult record. I indicate, in my opinion, trial fairness does not require the youth record to be placed in front of the jury in addition to the adult record, since:

1. They bear similar convictions; and
2. The drug possession convictions do not add anything to the analysis of Brandon’s credibility. (And I refer to a variety of cases)

Paragraph 28:

Accordingly, in my opinion, the youth record’s probative value is outweighed by its prejudicial effect, and it should be edited out of Joshua’s criminal record.

Application of the Law to the Facts

[23] Similar to the Barreira case, Mr. Champagne’s youth record consists of:

1. Dated youth “Drug Possession” convictions that do not add anything to Mr. Champagne’s credibility.
2. Dated convictions for “Breach of Recognizance” and “Possession of Stolen Property” convictions that are mirrored on the adult record.
3. There is a dated “Dangerous Operation of a Motor Vehicle” conviction from 1993, which has little relevance to his testifying 28 years later.

[24] In my opinion, the youth record has a probative value outweighed by its prejudicial effect, and in fact, I suggest has very little probative value given the factors I have outlined, and accordingly it will be edited out of Mr. Champagne’s criminal record.

[25] Following orders remain then:

Orders

[26] Mr. Champagne can be cross-examined on his entire adult criminal record, pursuant to s. 12.1 of the Canada Evidence Act.

[27] Mr. Champagne cannot be cross-examined on his youth record, and the youth record is to be edited out of his criminal record.

[28] The jury will be charged regarding the limited use to made in Mr. Champagne’s cross-examination on his adult record. (See Corbett at paragraph 35, 36; and R. v. N.A.P. at paragraph 20)

[29] Pursuant to R. v. Laurier, [1983] O.J. No. 195 (ONCA) paragraph 10; and R. v. M.C. at paragraph 84; and Corbett at paragraph 48, the cross-examination is to be restricted as follows:

[30] In cross-examining the accused about his prior criminal record, Crown counsel is entitled to ask for the name of the crime, the substance and effect of the indictment, the place of the conviction, and the penalty, but he is not entitled to cross-examine the accused about any details about the offences.

[31] That is my order.

Skarica J. Released: March 19, 2024

COURT FILE NO.: CR-18-163 DATE: 2024-03-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant - and – MARK CHAMPAGNE Respondent ORAL REASONS FOR CORBETT APPLICATION RULING JTS; bc Released: March 19, 2024