Court File and Parties

COURT FILE NO.: 19- M6279 DATE: 2024/01/09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Donald Musselman Accused

Counsel: Matthew Geigen-Miller and Lisa Miles, for the Crown Leo Russomanno and Kim Hyslop, for the Accused

HEARD: November 28, 2023

RULING ON CORBETT APPLICATION

ANNE LONDON-WEINSTEIN J.

[1] I earlier heard the Applicant’s Corbett application prior to Mr. Musselman providing evidence in this trial. I granted the application and indicated that I would provide reasons to follow. These are those reasons.

[2] The Applicant was charged with second-degree murder in relation to the shooting death of Markland Campbell which occurred on June 7th, 2019.

[3] The Applicant anticipated testifying in his own defence and his credibility was therefore at issue.

[4] The Applicant had a criminal record with the following convictions:

• Unauthorized possession of a firearm contrary to s. 91(1) of the Criminal Code, R.S.C. 1985, c. C-46. The date of the offence was May 14, 2016 and he was convicted on November 3, 2016. He received a sentence of probation of 12 months and a discretionary weapons prohibition under s. 51(2) of the Youth Criminal Justice Act, S.C. 2002, c. 1, for two years;
• Failure to comply with direction contrary to s. 145(3) of the Criminal Code. He was convicted of this offence on February 18, 2021 in Ottawa and received a sentence of 10 days jail;
• Assault contrary to s. 266 of the Criminal Code. The date of this offence was July 6, 2019 and he was convicted on August 23, 2021. He received a suspended sentence and one day of probation; and
• Finally, on July 21, 2023 he was convicted of possession of a Schedule I substance for the purpose of trafficking. The offence date was June 8, 2019. He was sentenced to one day of jail (two years pre-sentence custody), and a s. 109 order for 10 years.

[5] The Applicant sought exclusion of the 2016 conviction for unauthorized possession of a firearm and the 2021 conviction for assault.

[6] In excluding the Applicant’s conviction for unauthorized possession of a firearm and his conviction for assault, I considered the nature of the convictions, the degree of similarity between the prior convictions and the alleged offence, the remoteness of the prior convictions, and the risk of creating a distorted picture that the accused is more worthy of belief than Crown witnesses based on their criminal history.

[7] I also considered that the nature of the Applicant’s convictions for crimes of violence and the possession of a firearm mean that they have limited probative value on the question of his credibility.

[8] I also reasoned that acts of violence, such as assault, are less probative of an individual’s credibility than acts of dishonesty such as fraud or theft, or offences against the administration of justice.

[9] The jury will, of course, not be left with the impression that the Applicant has no criminal record. They will be aware of his prior convictions for failure to comply with direction and possession for the purpose of trafficking, and were also made aware that he has been in custody since his arrest on June 8, 2019.

[10] The jury will also, by nature of the evidence the Applicant is anticipated to provide, learn that he was involved in the drug subculture at the time of the allegation, including that he was involved in drug trafficking. He will also be cross-examined on the vetted and edited intercepts which reduce any risk that the jury will view him in an artificial light, as having an unblemished record.

[11] None of the witnesses in this case were cross examined by the defence in relation to criminal records. Reanna Campbell was challenged in relation to both her credibility and reliability. However, this cross-examination was rooted in contradictions between her evidence at trial, and statements which she had provided on prior occasions.

[12] In this regard, the following comments of Forestell J. in R. v. Brown, 2019 ONSC 1472, at para. 14, are apposite:

The fourth factor is trial fairness and relates to the nature of any defence attack on the credibility of the Crown witnesses. The more vigorous the defence attack on the credibility and character of the Crown’s witnesses, and the greater the emphasis placed by the defence upon the prior criminal records of Crown witnesses, the more likely it is that the court will permit the Crown to similarly cross-examine the accused on the details of his criminal record. Otherwise, the jury might get a distorted picture. However, as Rosenberg J.A. stated in R. v. Batte, at para. 46, “[t]here 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. It is only here the cross- examination of a Crown witness goes beyond such attacks and directly impugns the character of the Crown witness that trial fairness may require that the Crown be able to cross-examine the accused fully on his criminal record.”

[13] My assessment of the conduct of the defence in this case, is that the defence cross-examined Ms. Campbell primarily on inconsistencies in her evidence between her testimony at trial and prior statements. Ms. Campbell’s character was not attacked. She does not have a criminal record. There is no risk that the jury will be left with the distorted impression that the Crown witnesses are hardened criminals, while the accused has an unblemished past.

[14] The admissibility of a witness’ criminal record is governed by ss. 12(1) and (1.1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, which read as follows:

12(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.

(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.

[15] The purpose of this section is to provide juries with evidence to consider in assessing the credibility of the witness: R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 684-685. Apart from its relevance to credibility, evidence of prior convictions of an accused are generally inadmissible: Corbett, at p. 688.

[16] Trial fairness is the overarching concern in a Corbett application. The entire purpose of a Corbett application, and the related discretion to exclude or excise parts of the accused’s criminal record is to ensure the preservation of the right to a fair trial: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 173, citing R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.), at para 5.

[17] In Corbett, the Supreme Court of Canada said the best approach for trial judges is to provide the jury with all relevant information, along with a clear instruction as to the permitted use of that information. However, the court noted that trial judges maintain the residual discretion to exclude evidence of an accused’s criminal record when its probative value is outweighed by the risk of prejudice: Corbett, at para 51.

[18] In the case at bar, the Applicant has a limited record; however, it is not an insignificant one for a young man who has been in custody since he was 18 years old. The 2016 conviction is the only conviction which occurred prior to his arrest for the charge before the court. The remaining three convictions have offence dates that post-date the homicide charge. The defence concedes the 2021 conviction for failure to follow a direction is admissible and also agreed that the conviction and underlying facts for possession for the purpose of trafficking on June 8, 2019 are admissible.

[19] In my view, there is a significant risk that the jury will misuse the remaining two convictions. These convictions add very little in terms of assisting the jury in assessing the credibility of the Applicant, especially when considered within the context of the remaining evidence.

[20] Given that courts should be wary of admitting evidence of an accused’s conviction for a similar crime, in order to avoid the possibility that the jury might convict because of the accused’s disposition to commit such crimes. In R. v. Hong, 2015 ONSC 4865, at paras. 94-95, the court found that in a trial for murder, prior convictions for assault were “evidence of disposition to act in a violent manner” and that the “risk of propensity reasoning is palpable.”

[21] In R. v. Grizzle, 2016 ONCA 190, at paras. 15-19, the trial judge excluded weapons and firearms offences to ensure that propensity reasoning did not seep into the deliberation process, despite the existence of limiting instructions to the jury, in a trial involving weapons offences.

[22] The court is required to engage in an analysis which encompasses the risks of both exclusion and inclusion of the criminal entries: R. v. Brand (1995), 98 C.C.C. (3d) 477 (Ont. C.A.), at para. 8.

[23] In determining that the conviction for unauthorized possession of a firearm and his conviction for assault should be excluded, I considered that these convictions pose a risk that the jury will misuse the convictions. The convictions for previous possession of a firearm and assault raise the risk that the jury will engage in propensity-based reasoning, despite an instruction provided by the court.

[24] There is no risk, within the context of this case, that a distorted picture will be presented to the jury that the accused is more worthy of belief than the Crown witnesses based on their criminal history. Convictions for violence have limited probative value in relation to credibility. There was also a body of evidence which was rendered admissible by virtue of the defence in this case, which is known third party suspect. I am referring to the intercepts, which I permitted the Crown to use in cross-examining Mr. Musselman. This evidence was highly probative, but also gave the jury an insight into the milieu in which Mr. Musselman was operating at the time. Although I cautioned the jury with respect to the use of this evidence, its use in this trial, in my view, would prevent the jury from regarding Mr. Musselman in an artificially distorted manner.

In all of the circumstances, I exercised my discretion in excluding the convictions as requested by the defence.

Released: January 9, 2024 Anne London-Weinstein J.