COURT FILE NO.: YC-23-3/006-0000 DATE: 20241107

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – I.T. Defendant/Applicant

Counsel: Bryan Guertin, Rhianna Woodward, for the Crown Monte McGregor, Amanda Warth, for the Defendant/Respondent

HEARD: September 23 to October 16, 2024

Justice S. Nakatsuru

[1] I.T. is a young Black youth charged with second-degree murder. From the back seat of a taxi, he shot and killed Christopher Jung, an elderly taxicab driver ferrying him to a shopping mall in East Toronto. [1] I.T. wishes to testify in his own defence before the jury but he has a youth record. After the end of the Crown’s case, he brought a Corbett application: R. v. Corbett, [1988] 1 S.C.R. 670. The application was allowed in part. These reasons provide more substance to the decision given in court.

[2] Purposefully, I have described I.T.’s race. I find that anti-Black racism should be a factor in the exercise of my discretion to exclude or sanitize certain parts of his youth record. I will explain why.

[3] Before I do, I will first set out the basic test to be applied on a Corbett application.

A. The General Law

[4] The admissibility of a witness’s criminal record is governed by s.12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5 which states:

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.

[5] Section 12 of the Canada Evidence Act is made applicable to youth records pursuant s. 81 of the Youth Criminal Justice Act, S.C. 2002, c. 1. Therefore, this makes I.T.’s prior youth record presumptively admissible for the purpose of assessing his credibility when he testifies in his own defence. It is agreed that the convictions do not fall within the access period restrictions for youth records as found in Part 6 of the Youth Criminal Justice Act. Thus, the Crown is not precluded for that reason from cross-examining I.T. on such youth findings: R. v. Sheik-Qasim, (2007), 230 C.C.C. (3d) 531 (Ont. S.C.J.); R. v. Hammerstrom (2018), 363 C.C.C. (3d) 430 (B.C.C.A.).

[6] In Corbett, the Supreme Court of Canada upheld the constitutionality of s. 12 when an accused is cross-examined on their previous convictions and found the section did not violate the right to a fair trial nor was it contrary to the principles of fundamental justice. In coming to this conclusion, the court determined that the preferred approach was to permit the jury to have all relevant information with a proper limiting instruction given as to its permissible use. However, a discretion in the trial judge to exclude evidence of previous convictions in the appropriate case was recognized when the right to a fair trial required it. The test for doing so is familiar: the onus is on the defence to prove that the probative value of a criminal record on the credibility of the accused is outweighed by the risk of prejudice: Corbett, at para. 51. The factors considered in the exercise of this discretion include:

1. The nature of the previous convictions.
2. The remoteness of the previous convictions to the present charge.
3. The similarity of the previous convictions to the present charge.
4. Whether there was a deliberate attack on the credibility of a Crown witness; especially if there is a credibility contest between the accused and that witness based on their character.

[7] These factors, while not exhaustive, have been the most important ones in determining a Corbett application: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 177; R. v. McManus, 2017 ONCA 188, 36 C.R. (7th) 261, at para. 82; R. v. Laing, 2016 ONCA 184, at para. 20. Deference is afforded to trial judges’ determinations of Corbett applications. Appellate intervention is only warranted when the trial judge’s Corbett decision demonstrates an error in principle, misapprehension of the material facts, or was an unreasonable exercise of discretion: R. v. Asante, 2022 ONCA 657, at para. 21, citing R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304.

[8] Credibility is the key consideration when deciding the probative value of past convictions on a Corbett application: “[t]he probative value of a prior conviction in a Corbett application is always rooted in the strength of the inference that can be drawn from the fact of the conviction to the testifying accused's credibility”: King, at para. 180. The prejudice involved is the obvious one: the jury may well consider the general propensity revealed by the criminal record as evidence that the accused is more likely to have committed the offence they are charged with.

[9] Convictions for offences such as acts of deceit, fraud, cheating, theft, and disrespect for the administration of justice have been considered particularly informative of a witness’s honesty: King, at para. 140. On the other hand, certain types of convictions have been considered less relevant to credibility. For example, in R. v. Wilson (2006), 39 C.R. (6th) 345 (Ont. C.A.), at para. 33, the Court of Appeal held that drug convictions are of little probative value on the issue of credibility. La Forest J., in his dissent in Corbett, at para. 155, said that acts of violence generally have little or no direct bearing on honesty and veracity. However, even where convictions are disconnected from crimes of dishonesty, they may have the potential to demonstrate a lack of trustworthiness on the part of the witness by showing an “abiding and repeated contempt for laws”: King, at para. 140, citing Corbett.

[10] In general, the Corbett analysis is the same whether the records are youth records or adult records; the question remains whether the prejudicial effect of a conviction outweighs its probative value: Morris v. The Queen, [1979] 1 S.C.R. 405. Yet, added complexity is involved when it comes to youth records. Amongst other principles, the YCJA is premised on the principle that young persons have diminished moral blameworthiness or culpability: s. 3(1)(b) of the YCJA; R. v. D.B., 2008 SCC 25. Consequently, youth convictions for an offence are not necessarily the moral equivalent as adult convictions for the same offence. This may have an impact on the probative value of youth convictions on credibility: R. v. Hall, 2011 ONSC 6526, at para. 14; R. v. Hussein, 2023 ONCA 253, at para. 66; Nicola J. Langille, Forgetting Youth: The Use of Prior Youth Records to Impugn Credibility, 2014 72-1 University of Toronto Faculty of Law Review 10, 2014Docs 33741. At times, courts have deleted youth records or convictions when the accused has a similar adult record because the existence of adult convictions would avoid leaving the jury with a skewed or incomplete picture of their credibility: Hall; R. v. Barreira, 2017 ONSC 2478, at para. 27; R. v. Champagne, 2024 ONSC 1437, at para. 24. In other cases, youth convictions remained untouched though an adult record also existed: Asante, at paras. 23-25.

[11] I turn now to how anti-Black racism can be considered as a factor in a Corbett application.

B. Anti-Black Racism Considerations on a Corbett Application

R. v. King: Setting the stage for considerations of systemic racism in the Corbett analysis.

[12] The seminal case of R. v. Gladue, [1999] 1 S.C.R. 688 offered early guidance to courts on how the racial background of an accused should affect sentencing, per section 718.2(e) of the Criminal Code. In that case, a 19-year-old Cree woman named Jamie Tanis Gladue was convicted of manslaughter after killing her common-law husband. Cory and Iacobucci JJ. writing for a unanimous Supreme Court of Canada, explained that the intent of s. 718.2(e) is to alleviate Indigenous overincarceration and to adopt the principle of restorative justice. At para. 68, the court recognized that “the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.” As such, the s. 718.2(e) analysis must focus on the unique circumstances of Indigenous peoples in Canada, including systemic factors that may have assisted in bringing the Indigenous accused before the courts.

[13] Relatively recently, the principles set out in Gladue in the sentencing context were made applicable to Corbett applications.

[14] In King, at paras. 132-202, the Court of Appeal for Ontario held that trial judges can apply Gladue principles in their determination of a Corbett application for an Indigenous accused. The accused in that case, a young Indigenous man, was charged with second-degree murder. The trial judge, Goodman J., excluded King’s prior assault convictions, accepting defence counsel’s submission that the respondent’s Indigeneity impacted the probative value and prejudicial effect of the prior convictions: R. v. King, 2019 ONSC 6851. At para. 41, Goodman J. spelled out the need to extend Gladue principles beyond the sentencing context: “Sentencing innovation, by itself, will not deal with the underlying causes of crimes committed by Indigenous people nor with the problem of over-incarceration. More must be done.”

[15] The Court of Appeal upheld Goodman J.’s decision on the Corbett application, finding that an accused's Indigeneity is a relevant, although not dispositive, factor to consider. The concern for trial fairness, underlying the Corbett analysis, requires trial judges to pay particular attention in the analysis to the unique circumstances of an Indigenous accused, where those circumstances affect the probative value and prejudicial impact of their criminal record. Several of the Corbett factors required further specification to put the judge into an adequate position to accurately assess the prejudice and probative value of admitting past convictions. This can be done as a separate step or within the confines of the existing traditional Corbett factors. The court concluded in upholding the trial judge’s ruling, that the accused’s Indigeneity, placed in its proper context and considered alongside the other traditional Corbett factors, weighed in favour of numerous convictions being excluded.

[16] The post-King case law continues to consider Gladue principles in the Corbett analysis for Indigenous accused persons: see, for example, R. v. Hikoalok, 2023 ONSC 406, and R. v. Young, 2023 BCSC 276, [2023] B.C.J. No. 347. However, to my knowledge, no trial judge has ventured to extend the court’s reasoning in King to other racialized accused persons.

[17] In my view, the reasoning from King makes this extension to Black accused ripe and very much called-for. What I propose is not a simple application of Gladue to Black Canadians, which Rosenberg J.A. declined to do in R. v. Borde (2003), 63 O.R. (3d) 417 (Ont. C.A.), but rather an extension of the reasoning in King as it pertains to accused who are subject to the adverse effects of systemic racism more generally. This doesn’t presuppose that the racism experienced by Indigenous peoples and Black Canadians are comparable. As I previously observed in R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, at para. 57, “the voices of each community deserve to be heard on their own individual terms.” What it does presuppose is that racism’s roots, both historical and current, based in privilege and dominance, are comparable across cases and may call for similar safeguards among differently racialized accused. To address it similarly across cases of differently racialized accused merely recognizes the common source of racial inequity in the criminal justice system and society at large, without diminishing the varied experiences of different racialized groups. This recognition should imbue the concept of trial fairness for other racialized accused that suffer from systemic racism as much as it does for Indigenous accused.

[18] The Court of Appeal in King is clear that the purpose of considering Gladue principles in a Corbett analysis is to advance trial fairness by ensuring oft-overlooked factors, like systemic racism, are accounted for (at para. 175):

[L]ike in the sentencing context, taking into account the realities facing Indigenous people, including the consequences of overt and systemic racism, does not necessarily direct a different result on Corbett applications. The application of the Gladue principles in this context is not intended as a vehicle to redress broad social problems or to remedy past disadvantage … Rather, it is intended to advance trial fairness by permitting trial judges to take all relevant factors into account – factors that might otherwise be overlooked – when exercising their discretion to exclude evidence that is more prejudicial than probative.

[19] The Crown submitted that it is unnecessary to do this for a Black accused like I.T. because of the general instructions about bias and prejudice given to the jury panel and petite jury, and the challenge for cause on the grounds of race. I do not agree. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R.579, existing procedural safeguards against juror bias are not a panacea. Corbett itself is a recognition that jury instructions will not always be sufficient to guard against improper propensity reasoning. Trial fairness demands that all factors bearing on the statutory presumption of admission be considered. It is imperative that the Corbett analysis direct trial judges to consider whether in the context before them, the accused is at elevated risk of prejudice because of racist stereotypes: King, at para. 196. I am satisfied that this need to guard against improper propensity reasoning applies not only to cases of Indigenous accused, but to all cases involving Black accused.

Applying anti-Black racism to Corbett: Guidance from R. v. Morris

[20] In my view, cases that consider anti-Black racism in sentencing, such as Borde, R. v. Hamilton (2004), 72 O.R. (3d) 1 (Ont. C.A.), and, most cogently, R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, can be extended for use in the Corbett analysis in a way that mirrors the Court of Appeal’s reasoning in King and widens its scope to Black accused in Canada.

[21] It is not a novel idea that social principles considered in sentencing need not be limited to the sentencing context. Courts have held that Gladue principles are not strictly limited to sentencing hearings and ought to be considered by all decision makers who have the power to influence the treatment of Indigenous offenders in the justice system. As aptly summarized by King at para. 170:

“As can be seen, the term "Gladue principles" has thus become a short form way of adverting to the idea that those involved in the criminal justice system, particularly judges exercising discretionary power, ought to be aware of the realities of the Indigenous people appearing before them. By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in "lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably. We can put it no better than Moldaver J. in Barton, at para. 199: "when it comes to truth and reconciliation from a criminal justice perspective, much-needed work remains to be done".

[22] It reasonably follows that Morris principles ought not be strictly limited to sentencing decisions and should be considered by all decisionmakers who have the power to influence the treatment of Black people in the justice system. It is worth noting here, though not applied as directly or as often as Gladue principles to the exercise of judicial discretion, Morris principles have been utilized in legal contexts other than sentencing: R. v. Theriault, 2021 ONCA 517, at paras. 141-146 (the assessment of the credibility of a Black witness based upon the racial and social context of a witness’s background including a distrust for law enforcement); R. v. Ali, 2024 ONSC 5208, at para. 157 (anti-Black racism heightening the prejudicial effect of the admission of rap music); R. v. Morgan, 2023 ONSC 6855, at para. 70 (anti-Black racism intersecting with the assessment of police racial profiling); R. v. Aim et al, 2023 ONSC 5909, at para. 40 (race-based fear of police providing an alternative explanation for post-offence conduct); R. v. E.B., 2020 ONSC 4383, at paras. 26, 40-44 (application in a bail decision). [2]

[23] The Court of Appeal held in Morris at para. 13 that “[c]ourts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender”. The court cited a report, “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, by Professor Owusu-Bempah, Professor James, and Ms. Sibblis, which explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. The court urged those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders, to “read and re-read this report” (at para. 43). That report concluded:

It is our opinion that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic. Elevated levels of offending in the types of crimes that typically come to the attention of the police (street crimes as opposed to white-collar and corporate crimes), combined with discrimination in the justice system itself have resulted in the gross over-representation of Black Canadians in our provincial and federal correctional systems. Whereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged and serve to guide judicial decision making.

[24] The report discusses how young Black men in particular are discriminated against in the criminal justice system: “[y]oung Black Canadians are not only over-represented in stop, search and carding practices of local police, but they serve longer periods of time in pre-trial detention, resulting in longer periods of incarceration than are others charged with the same or similar crimes”: R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, at para. 22. According to the report, Black youths’ experiences with the criminal justice system led to an “inescapable” conclusion that young Black Canadians who view the system as unjust are less likely to believe they should abide by that system’s rules.

[25] While Morris dealt with sentencing and the present case deals with a Corbett application, I am prepared to find that similar factors relating to anti-Black racism can appropriately be considered in both. Both cases deal with ensuring judicial fairness in light of systemic racism. By considering anti-Black racism in I.T.’s Corbett application, I am striving to improve trial fairness by considering all factors bearing on the admissibility of his past convictions. To make it abundantly clear though, this in no way diminishes the traditional four Corbett factors nor does it demand a favourable result for a Black accused.

[26] In sum, I am satisfied that King and Morris make it possible—if not imperative—for me to consider Canada’s historical and continued presence of anti-Black racism in my Corbett analysis of I.T.’s past criminal record. While I realize the novelty of this addition to the Corbett analysis, I am satisfied that the case law, social science literature, and the fair and impartial administration of justice compels me to take this step.

The application of the King principles to a Black accused.

[27] In applying the Corbett analysis to Black accused, the following principles can be gleaned from King:

• In the assessment of the probative value of the convictions, one must place the Black accused’s criminal record within the context in which it has been accumulated in order to correct for possible systemic biases, stereotypes, and assumptions. Doing so might detract from the strength of the credibility inference that can be taken. A conviction that stems in part from circumstances of disadvantage including systemic racism rather than a subjective contempt for the law or truthfulness may lesson its probative value (at paras. 179-180, 189). [3]
• Evidence of a causal link between the conviction and overt or systemic racism is not required. However, there must be some evidence to support that systemic or background factors are “tied in some way” to the accused and the conviction (at paras. 182-184).
• In calibrating the danger of prejudicial propensity reasoning based upon past convictions, note must be taken of the fact that Black persons are objects of racism both outside and inside the criminal justice system which may prevent jurors from fairly and accurately assessing the credibility of Black accused. This is so despite procedural safeguards such as jury cautions and race-based challenges for cause (at para. 194).

[28] Those are the principles at play. As an aside, in keeping with the above conclusion that Gladue considerations cannot be simply transposed to other racialized groups, I find that the record is inadequate to adopt what King held with respect to convictions of Indigenous accused obtained as a result of a guilty plea. For Indigenous accused, convictions secured by guilty pleas must be placed in the context of the attitudes of Indigenous persons shaped by systemic racism in the criminal justice system (at paras. 190-191). Said differently, Indigenous accused overwhelmingly plead guilty suggesting that, for Indigenous people, a conviction arising from a guilty plea may be less probative of credibility because of their belief that they will not receive a fair trial due to the racist nature of the criminal justice system. For Black accused, I do not have the social context evidence to support a similar conclusion.

C. Analysis of I.T.’s Record

The Corbett voir dire

[29] Before this analysis is undertaken, I wish to make the following observations about the evidentiary voir dire. One is normally required at the end of the Crown’s case before the accused has to make the decision whether to testify or not: R. v. Underwood, [1998] 1 S.C.R. 77, at paras. 9-11.

[30] Similar to the facts in King, here, the defence did not call any viva voce evidence nor was there a formal agreed statement of facts presented on the Corbett voir dire at the end of the Crown’s case. That said, like the trial judge in King, I heard much about I.T.’s background when he testified in chief in his own defence. As the Court of Appeal noted in King, it would have been preferable to have received some of this evidence during the voir dire. However, for the following reasons, I find that there was a sufficient foundation laid for me to take into consideration the systemic anti-Black racism factors.

[31] First, while Lamer C.J. in Underwood saw the need for evidence, he made this comment in the context of the court knowing something about the defence to meaningfully conduct the assessment of probative value versus prejudice. He was not making this observation when it came to the use of social context evidence more generally and the consideration of systemic considerations in that analysis. As Morris and King hold, judicial notice can be taken of the social context evidence required to further the Corbett analysis.

[32] Second, the defence has been very transparent from the beginning of the jury trial what his defence will be. In questioning Crown witnesses and in submissions made in the absence of the jury, the defence has been consistent, focused, and revealing that I.T. will testify that he was too intoxicated to form the intent to commit second degree murder. The Crown in no way disputes that this will be the defence. At para. 10 in Underwood, Lamer C.J. was receptive to the possibility that there will be cases where in a Corbett application, no defence disclosure is needed because the nature of the defence is fairly clear or has otherwise been disclosed, or where the outcome of the application is readily apparent without this information.

[33] Third, the link required to tie the systemic and background factors to the accused or their convictions, is neither causal, nor, in my view, a significant one depending on the particular circumstances presented. Noteworthy is the fact that a court will always have the record before it with the nature of its convictions. In addition, the social context evidence for which judicial notice applies provides a tool to assess the various convictions. Moreover, the evidence led by the Crown in its prosecution can also be considered in assessing the existence of the required link. Just as an example, the Crown’s case included evidence of I.T. after the shooting making his way back to a social housing complex in a poor neighborhood. Finally, even the appearance of I.T., his “Blackness” [4], surely must be considered as some evidence to support that anti-Black racism could well be tied into some of his convictions and the potential prejudice he might suffer if they are admitted.

[34] Fourth, the court in King was most mindful that the addition of systemic considerations in a Corbett voir dire, not cause any significant disruption to the trial. They said at para. 183:

…to turn a Corbett application, necessarily occurring at the end of the Crown's case and when the jury is on hold, into a complex evidentiary hearing, involving proof of linkage between convictions and Indigeneity, would create profound and unnecessary delay. We must remain ever mindful of imposing more demands on an already overly burdened and complex criminal justice system. The criminal law is not calling for more complexity. If anything, it is calling out for simplicity, and most importantly, quality justice delivered with efficiency: R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, at paras. 3, 27, 45.

[35] Finally, as previously noted, I have heard about I.T.’s background when he testified. He was born in the United States. His childhood was punctuated by repeated incidents of abandonment by those nature had tasked to nurture, care, and love him. His early upbringing was caustic, isolating, and severe. He was shuffled for many years across many States, to various families, including once being sent on a cross-continental bus trip, alone, without any adult to accompany him. Ultimately, he arrived in Toronto, where again he was abandoned by his mother. His teenage years though more stable, was confined to a violent and poor neighborhood. He resorted to illegal activities to survive. In Underwood at para. 11, Lamer C.J. explicitly left it open for a trial judge to change their Corbett ruling after hearing defence evidence led. Thus, it was open to me to consider I.T.’s testimony in assessing whether my Corbett ruling needed to be revisited. To the contrary, I.T.’s testimony only solidified my view that systemic factors must play a role in the assessment of his youth record.

[36] In short, the point I make here is that a significant burden should not be placed on a Black accused before Morris considerations be taken into account on a Corbett application. To place an onerous evidentiary burden, in my opinion, would inject a significant element of unfairness into what is meant to be an expeditious mechanism to make a trial fairer.

The assessment of his youth record

[37] The Crown and defence counsel have been exceptionally fair in their positions on this application. Thus, I have focused on the convictions in dispute in these reasons.

[38] In summary form, I.T.’s convictions are all from the years 2020 to 2021. There are 14 convictions in total. The Crown and the defence agree that the following convictions can be admitted: Fail to comply with a recognizance, theft of an automobile (x2), operate a conveyance while impaired, fail to comply with a sentence, and possession of stolen property over. Both parties agree that a conviction for a break and enter with intent be deleted.

[39] Before addressing the material convictions in dispute, a factor taken out of the analysis is the fourth one mentioned in Corbett. The defence conducted no attack on the credibility of any Crown witness. Indeed, almost all the Crown’s evidence was unchallenged. The most probative of the prosecution evidence was in the form of CCTV surveillance evidence, which spoke for itself. The singular issue in this case will be whether the Crown has proven beyond a reasonable doubt the mens rea for second degree murder. This will largely depend on the defence evidence called.

[40] The following is my analysis with respect to the convictions in dispute.

[41] First, in 2020-02-28, there is a conviction for assault peace officer. While this is a crime of simple violence which normally would not have much probative value in relation to credibility, the Crown submits that because it was an assault upon a peace officer, the probative value is increased. As a state agent charged with the enforcement of laws and the protection of the public, an assault on that agent, the Crown argues, is conduct akin to failing to abide by a court order and demonstrates an antipathy towards the system of law.

[42] Relevant considerations include the conviction is not too remote in time. On the other hand, it was committed when I.T. was about 15 years of age. It is a crime of violence, though far less serious, than the murder charge he faces.

[43] In this instance, systemic racism plays a role. Devoid of social context, this conviction might well be admitted. But the social context provides a backdrop against which the enhanced prejudicial effect of this conviction, and the high risk of improper propensity reasoning, becomes clear. This conviction has a strong potential to cast I.T., a young Black man, as having a heightened disdain for law enforcement and the criminal justice system. Jurors with implicit anti-Black attitudes might more readily see I.T. as the “type of person” to commit the offence charged because the conviction of assaulting a peace officer validates their implicitly held attitudes about Black people and their criminality: see R. v. Parks (1993), 15 O.R. (3d) 324 (Ont. C.A.). In turn, this could enhance the risk that Black persons are more likely to resort to violence in defiance of social morals and norms. This would invite improper propensity reasoning with respect to the offence the accused is charged with. Stereotypes about Black people and criminality are shaped by these unfortunate and misguided social norms. Corbett provides an opportunity for trial judges, exercising their gatekeeper role, to exclude convictions that engage these stereotypes, and thus run a high risk of producing reasoning fallacies among jurors.

[44] In addition to the heightened prejudice of this conviction, its probative value is lessened when the social context is considered. With the added dimension of systemic anti-Black racism comes an understanding that racial profiling leads to more frequent interactions between Black people and police, and that Black communities have a deep mistrust of police based on historic and continued racial profiling, instances of police brutality, and Black overrepresentation in the criminal justice system. These interactions and the prevalent distrust add complexity to the straightforward submission on probative value made by the Crown and detracts from the force of the inference that the conviction influences I.T.’s credibility. In other words, the probative value of the conviction on an accused’s trustworthiness is significantly lessened when it is placed into its proper social context.

[45] I am satisfied that given who I.T. is and the nature of the offence, that the systemic or background factors are tied in some way to the accused and the conviction. I am further satisfied that its prejudice outweighs its probative value. It will be excluded.

[46] Second, is a Toronto conviction of 2020-02-28 for possession of a firearm knowing its possession is unauthorized. Along with this are Oshawa entries of 2020-08-26 for four firearm offence convictions for the possession or conveyance of a firearm, all pertaining to the same handgun. For these sets of offences, the Crown agrees that the transport firearm conviction and one of the possession counts can be removed from the record. The defence submits that all should go. Alternatively, the defence submits that convictions for a possession of a weapon offence should be substituted.

[47] While these offences are not offences immediately connected to dishonesty or a disrespect for the administration of justice, I find that they do have probative value in that given the number of convictions, at two different times for crimes of a similar nature, they tend to show an abiding and repeated disrespect for the law. Like all entries on his youth record, they are not remote and given the whole of the record, they show a linear path of repeated disrespect of the law up to the time of the shooting of Mr. Jung. If removed completely like the defence requested, there would be a fairly significant gap in his youth record; significant in the sense since he is still young and has not yet had the time to accumulate a lengthy record. I am concerned that deletions of all these convictions may have a misleading effect on the jury when it comes to assessing his record and its effect on his credibility.

[48] On the other hand, while these are not crimes of violence per se, the prejudice of propensity reasoning is greater because of the connection made in the public mind of guns and crimes of violence: R. v. Grizzle, 2016 ONCA 190 at paras. 15-16. Moreover, on the case specific facts here, I.T. used a handgun to repeatedly shoot a defenceless taxi driver. While these offences on his youth record are less serious than murder and the defence is focused on the state of mind of I.T., nonetheless, the potential prejudice is real.

[49] This type of prejudice arose in a similar situation in R. v. Hussein, 2023 ONCA 253 at paras. 54-55. In that case, the trial judge had dismissed a Corbett application because the trial judge discounted the risk of propensity reasoning on the key trial issue of the proof of the mens rea for murder. He explained that the foreseeability of death in the context of intoxication and the developmental delays of the accused person, would not be more likely if Mr. Hussein is thought by the jury to be a violent man on the basis of his criminal record. While Paciocco J.A. ultimately deferred to the exercise of discretion by the trial judge in his ruling, he nevertheless disagreed with the trial judge on a number of points in the latter’s reasoning and concluded that there was indeed a potential for prejudice even in these circumstances. He first disagreed with the suggestion that because the convictions did not include aggravated forms of violence and were significantly less serious than the offence charged, this would completely remove the risk of general propensity reasoning. Paciocco J.A. then acutely noted that a history of violence regardless can provoke a strong emotional response (at para. 54):

Violence is detestable, and it is seductive to believe that violent people likely committed the violent acts they are accused of committing. Improper propensity reasoning need be no more refined than this. Although murder is an act of extreme violence, I have no doubt that it is much easier for many to believe that a murder would be committed by a person prone to assaulting others, threatening others, and possessing weapons, than by someone who has no record of doing these things…

[50] In addition, while Paciocco J.A. agreed with the logic of the trial judge’s reasoning that when foreseeability of death is the primary focus in a trial, the danger of propensity reasoning of a criminal record of violence is lessened, there still remained a risk that jurors could draw the general prohibited inference that because he is a violent man, the accused would be more likely to act violently even when foreseeing the risk of death. If that improper reasoning was to be engaged, it could support a finding that the accused had the requisite intention for the offence (at para. 55).

[51] On the facts before me, the prejudice is even greater since the prior convictions involve the possession of firearms. The very kind of deadly weapon used to kill Mr. Jung. Simply, a jury may improperly reason that a person with the propensity to possess handguns, weapons that are designed only to kill, is more likely a person who would have a murderous intent when he did kill someone.

[52] Lastly, the prejudice is compounded when systemic considerations are added. For the reasons already articulated above, anti-Black racism and stereotypes of young Black men and firearms, pose a significant threat of general propensity reasoning, the kind alluded to in Hussein.

[53] Equally, systemic racism may also factor into the probative value of these convictions. A Black youth’s possession of guns cannot just be extricated from the complex and intersectional social context of growing up as a member of a racial minority in a socio-economically impoverished setting. Said differently, the probative value of these firearm convictions may be attenuated by these social considerations. As the expert report in Morris stated:

… evidence suggests that Black youth engage in violence as a means of “self-help” resulting from the belief that the police cannot, or will not, provide them with adequate protection (Wilkinson, Beaty and Lurry, 2009). Indeed, Wilkinson et al. found that gun carrying among Black youth in their sample resulted out of a fear of victimization and a feeling that the police could not act as capable guardians (2009: 29-31). The perception that they must take the law into their own hands not only adds to the cycle of violence in disadvantaged neighbourhoods, but also increases the risk of criminalization for Black youth when they do encounter the police.

[54] Yet, as I mentioned before, I do recognize that there remains significant probative value to these convictions. An important consideration is whether the excision of a conviction, in whole or in part, would leave the jury with incomplete and therefore inaccurate information.

[55] I find that the right balance can be achieved by sanitizing these convictions; that is by restricting the criminal offences that may be used or modifying the description of offences, to reduce the risk of prejudice: R. v. Batte (2000), 34 C.R. (5th) 263 (Ont. C.A.), at para. 51; R. v. Charbonneau, 2012 ONCA 314, at para. 29; Hussein, para. 25; R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, at para. 19.

[56] After considering all appropriate factors, the removal of any reference to a “firearm” will strike the right balance. Regarding the Toronto convictions, rather than a conviction for possession of an unauthorized firearm, there will be substituted an entry for possession of a restricted weapon knowing that its possession is unauthorized” (s. 92(2) of the Criminal Code). For the Oshawa offences, the entries regarding a firearm will be deleted. There will be substituted the offence of “possession of a restricted weapon” and “possession of a restricted weapon contrary to a prohibition order”. (s. 117.01 of the Criminal Code). Those are the only two convictions that will remain for the Oshawa entries.

[57] Lastly, the Toronto 2021-09-10 robbery conviction will be deleted, and the offence of “assault and theft” will be substituted. In submissions, both sides allowed for this as a reasonable compromise solution.

[58] The probative value of the conviction will remain as the element of dishonesty in the crime will be reflected by the theft conviction. The prejudice of the robbery conviction not only comes from the general propensity to violence that it conjures up, but also, from some very case specific circumstances. The Crown does not allege any motive on the part of I.T. in the shooting of Mr. Jung. It forms no part of any prosecution theory that this was a robbery gone awry. Nothing was taken from the cab and a substantial sum of money was left in Mr. Jung’s backpack visible on the front passenger seat. Nonetheless, in the light of what appears to be a random, senseless, and motiveless shooting, if a robbery conviction is left on I.T.’s record, some jurors may well speculate that a person who has in the past committed robbery, intended to rob Mr. Jung during the course of which, shot him with the intent to kill him or cause him bodily harm he knows is likely to cause his death and is reckless whether death ensues or not. This prejudice can be avoided with the proposed substitution.

Conclusion

[59] In conclusion, looked at in an aggregate and cohesive fashion, this admissible youth record will ensure a fair trial and the jury will still have sufficient and accurate information to assess I.T.’s credibility when he testifies. The jury will have a considerable youth record to consider on I.T.’s credibility including convictions for dishonesty, disrespect for judicial orders, and serious weapons offences. Any further deletion or editing of the appellant’s record would leave the jury with incomplete and incorrect information about his credibility as a witness. On balance, the probative value of this edited youth record on the question of his credibility as a witness outweighs the potential risk that the jury might use the prior convictions as evidence that I.T. is the type of person likely to have committed the offence with which he is charged.

[60] For these reasons, the application is allowed in part.

Justice S. Nakatsuru Released: November 7, 2024

Footnotes

[1] There is no issue I.T. shot Mr. Jung. Before the jury, he pleaded guilty to manslaughter. The Crown did not accept the plea.

[2] I would be remiss not to acknowledge that there is no uniform acceptance of Morris principles in every case-specific circumstance. For example, in Champagne the trial judge held that Gladue and Morris did not apply in a Corbett application. In my view, King has overtaken the reasoning and authority of this case. In R. v. Attipoe, 2023 ONSC 5247, at para. 47, Morris principles were not applied since there was no evidence that racial stereotypes played a role in the assessment of credibility. Lastly, in R. v. Brown, 2024 ONCA 453, at paras. 88-89 the Ontario Court of Appeal found that the trial judge erred by staying charges based upon Charter violations, inter alia, because she wrongly concluded without any evidence other than the fact the appellant was Black, that police misconduct towards a member of a racialized community was “axiomatically more egregious”. On the facts of that case, there was nothing linking the appellant’s race and the police misconduct in executing a Feeney warrant. In my opinion, the legal and factual circumstances in Brown are quite different from the Corbett application as found in the case at bar.

[3] Examples given of this are convictions arising from offences related to addiction or unnecessary or unreasonable bail conditions.

[4] By this I am not referring to the complexion of I.T.’s skin, but rather his race as a social construct.