Mid-Trial Ruling: Corbett Application
Court File No.: CR-22-40000197-0000
Date: 2025-05-13
Ontario Superior Court of Justice
Between:
His Majesty the King (Respondent)
and
Jahwayne Smart (Applicant)
Appearances:
P. Clement and A. Khadar, for the Respondent Crown
R. Posner, for the Applicant
Heard: May 8 and 12, 2025
Pursuant to s. 648(1) of the Criminal Code, no information regarding this ruling shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
J.M. Barrett:
A. Overview
[1] Jahwayne Smart is charged, along with Rashaun Chambers and Cjay Hobbs, with the first degree murder of Dante Andreatta and the attempted murder of Jonathan Adamski, Deshaun Daley, Jayden Rutherford, Isabella Ashman, and Angel Drummond. The alleged offences occurred on November 7, 2020, in Toronto.
[2] The trial has proceeded before a jury over three weeks. The Crown has closed its case, as has the accused Rashaun Chambers.
[3] The accused, Jahwayne Smart, seeks a ruling preventing the Crown from cross-examining him on the first of his six prior convictions. Specifically, a conviction dated January 24, 2013, as a young offender for the offence of manslaughter, for which he was sentenced to 58 days after having been credited with 672 days of presentence custody, a one-year conditional supervision order, and a mandatory prohibition order. Mr. Smart was 17 years old at the time. The request is that this entry either be excised or “read down” to assault.
[4] Mr. Smart’s adult criminal record consists of the following:
| Date | Offence | Sentence |
|---|---|---|
| 2017-12-07 | Conspiracy to commit an indictable offence | 2 years less 1 day (credit for the equivalent of 1 year, 1 day of pre-sentence custody) and mandatory weapons prohibition |
| 2017-12-07 | Possession of a Schedule I substance for the purpose of trafficking | 2 years less 1 day concurrent and mandatory weapons prohibition |
| 2017-12-07 | Fail to attend court | 1 year concurrent |
| 2018-07-04 | (1) Possession of a loaded prohibited or restricted firearm | (1) 18 months consecutive to sentence being served and mandatory weapons prohibition |
| (2) Possession of firearm or ammunition contrary to prohibition order | (2) 6 months concurrent |
[5] The defence does not take issue with the Crown cross-examining Mr. Smart on the entirety of his adult record.
[6] The Crown opposes the application and argues that it ought to be entitled to cross-examine Mr. Smart on all prior convictions, whether as a youth or adult, without editing.
B. The Governing Legal Principles
[7] Section 12(1) of the Canada Evidence Act, RSC 1985, c C-5 provides that a “witness may be questioned” as to whether or not they have been “convicted of any offence”. This recognizes the relevance of prior convictions to the credibility of a witness: see R. v. Brown, 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; R. v. Stratton, 42 C.C.C. (2d) 449 (Ont. C.A.), at p. 461.
[8] In R. v. Corbett, [1988] 1 S.C.R. 670, the Supreme Court of Canada held that this section includes a discretionary jurisdiction in trial judges to prevent such questioning where the probative value of a prior record in relation to the credibility of the accused is outweighed by its prejudicial effect. This discretion permits the judicial editing or sanitizing of the details of the criminal record of an accused so as to reduce any potential prejudicial impact some convictions might have, while maintaining their probative value on the issue of credibility: see R. v. Batte, 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51.
[9] In the more recent decision of R. v. Hussein, 2023 ONCA 253, 425 C.C.C. (3d) 528, at para. 26, the Court of Appeal for Ontario held that prior convictions are “presumptively admissible”. In other words, cross-examination is the usual course. It is only in cases where the defence establishes, on the balance of probabilities, that the probative value of the prior criminal conviction is outweighed by the prejudicial effect of the admission of the evidence, that such cross-examination is prohibited. See also: R. v. P. (N.A.), 167 O.A.C. 176, at para. 20; R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, at para. 14. This is consistent with the Corbett decision in which Dickson C.J.C. held that “if error is to be made it should be on the side of inclusion rather than exclusion”: at p. 697.
[10] If cross-examination is permitted, it is limited to the fact of the conviction, the offence, the date and place of the conviction, and the sentence imposed: Hussein, at para. 29. This is unlike the nature of cross-examination permitted of non-accused witnesses, who may be cross-examined about the circumstances underlying any prior conviction as well as other discreditable conduct.
[11] There are at least four factors that should be taken into account in the exercise of this discretionary jurisdiction on Corbett applications: see Hussein, at para. 32.
[12] The first factor is the specific nature of the previous conviction. Some offences, like crimes of dishonesty and offences against the administration of justice, such as breaching court orders, are of “obvious relevance”. They offer “particularly informative” circumstantial evidence of an accused’s dishonest character: Hussein, at para. 26; R. v. King, 2022 ONCA 665, 418 C.C.C. (3d), at para. 139.
[13] The second factor is the remoteness or nearness in time of the previous conviction to the charges now facing the accused. The older the conviction, the less probative value it will generally have in relation to the current credibility of the accused. The more recent the conviction, the greater the probative value it will generally have on the present credibility of the accused as a witness.
[14] The third factor is whether the previous conviction is similar in nature to the offences now charged. The more similar the previous convictions are to the currently alleged offences, the greater the potential prejudice. The more similar the offences, the greater the likelihood that the jury will engage in prejudicial and prohibited propensity reasoning: see R. v. P.(G.F.), 89 C.C.C. (3d) 176 (Ont. C.A.). As stated by Paciocco J.A. for the Court of Appeal of Ontario in Hussein, at para. 33, “courts should be wary of admitting evidence of convictions for a similar crime to avoid the possibility that jurors may convict because of the accused’s disposition”.
[15] The fourth factor is trial fairness. This generally relates to the nature of any defence attack on the credibility of Crown witnesses. The more vigorous the defence attack on the credibility and character of the Crown’s witnesses, the more likely it is that the court will permit the Crown to cross-examine the accused on his criminal record. This guards against the risk of presenting a distorted picture to the jury: e.g., see R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82. In such cases, the need to maintain a fair balance between the parties may favour the admission of an accused’s prior convictions. That said, there is a discretion to edit or modify the description of the prior conviction to reduce any risk of prejudice, particularly where the prior convictions are similar to the offences charged: Hussein, at paras. 33-35.
[16] These four factors do not constitute an exhaustive list of the relevant considerations: Hussein, at para. 32.
[17] In the exercise of this discretionary jurisdiction, a trial judge may also consider other relevant factors.
C. Position of the Parties
[18] Mr. Smart argues that “[b]ecause of the inevitable reasoning prejudice that will flow from admission of his manslaughter conviction, he will not testify if this conviction is ruled admissible” and that this will “occasion a miscarriage of justice”. Mr. Smart argues that the risk that the jury will engage in prohibited propensity reasoning is significant. Such prejudice far outweighs any added probative value that this prior conviction adds to the jury’s ability to assess his credibility given that his brazen disregard of the weapons prohibition demonstrates his contempt for the law and social norms. Moreover, in his written submissions, Mr. Smart’s anticipated testimony is an admission that he was on parole at the time of the offences and was someone with a criminal lifestyle. This is not a case where the absence of a youth conviction for manslaughter will leave the jury with a mistaken impression that he has an “unblemished past”. Nor is this a case where trial fairness demands the inclusion of this one youth entry. Mr. Smart intentionally avoided any attack on the character of the Crown witnesses.
[19] The Crown argues that excluding this one youth entry risks “misleading the jury” and undermining the “truth-finding process”. The Crown argues that counsel for Mr. Smart “very aggressively” cross-examined the Crown witnesses who were in the back seat of Jonathan’s car to suggest that they were “lying” about their level of sobriety based on their acknowledged consumption of marijuana. The Crown acknowledges that prior convictions for crimes of violence are not in the same category as offences of dishonesty such as perjury or theft. The Crown also acknowledges the dated nature of this conviction, but argues that its probative value outweighs the admitted “significant prejudice” it carries because: (i) it shows Mr. Smart is unlikely to have more respect for the truth than he has shown for human life; and, (ii) it shows a pattern of disregard for the law which dates back to 2011, not 2016 as suggested if one looks only at Mr. Smart’s adult record. Finally, the Crown argues that because Mr. Smart’s mens rea is the key issue, the jury may be “misled” if they do not know of his entire criminal record and that the right to a fair trial, “does not entitle an accused to present a misleading impression”.
D. Analysis
[20] With regard to Mr. Smart’s adult criminal record, I agree with counsel that the four factors of consideration set out in Corbett weigh in favour of the Crown being entitled to cross-examine Mr. Smart on all of his adult convictions.
[21] As the only prior conviction in dispute is the manslaughter conviction from January 2013, when Mr. Smart was a youth, this is what I will focus on.
[22] Applying the Corbett factors, the first factor is the nature of the prior conviction. The jurisprudence clearly shows that convictions for crimes of violence generally are of less probative value than convictions for crimes of dishonesty or crimes against the administration of justice.
[23] Manslaughter is not an offence of dishonesty that bears directly on the character and honesty of an accused. Manslaughter is a crime of violence. I recognize there is some support that prior convictions for crimes of violence may be relevant to credibility. They may demonstrate contempt for the law and that the accused witness is unlikely to have more respect for the truth than he has shown for human life. Indeed, the decision of Corbett involved the admission of a prior murder conviction when the accused was facing a charge of first degree murder. Similarly, in R. v. Saroya, 76 O.A.C. 25, a prior conviction for attempt murder was admitted in a case where the accused was charged with aggravated assault and assault causing bodily harm. These cases recognize that it is open to the jury to find that such prior convictions for violence demonstrate that the accused is “unlikely to have more respect for the truth than he has shown for human life”: para. 10. However, Saroya is distinguishable in that the prior conviction for attempt murder was the accused’s only prior conviction. To excise this single entry would have left the jury with incomplete and incorrect information about the accused’s credibility as a witness.
[24] In this case, to excise this one conviction would not present a misleading picture to the jury about Mr. Smart’s credibility. His adult record includes convictions for conspiracy to commit an indictable offence; fail to attend court; and possession of a loaded prohibited or restricted firearm and the possession of firearm or ammunition in contravention of a prohibition order. As stated in Hussein, at para. 26, convictions for offences against the administration of justice are “particularly informative” circumstantial evidence that the accused has a dishonest character. These offences demonstrate that Mr. Smart has contempt for the law.
[25] I now turn to the second factor: The remoteness or nearness of the prior conviction to the charges that the accused is now facing. The manslaughter conviction was as a youth and dates back to 2013. The Crown acknowledges the dated nature of this conviction but argues that it demonstrates a “pattern of criminal conduct” and therefore “a long-standing disregard for the law”. I agree that there is some probative value in the jury knowing that Mr. Smart’s criminal offending did not start in 2016. Further, the three-year gap between his manslaughter conviction as a youth and the start of his adult record is similar to the gap that existed in Hussein, wherein the trial judge admitted the youth convictions finding that they formed part of a “cohesive whole”.
[26] I now turn to the third factor: the similarity between the offences charged and the prior conviction. The Crown acknowledges that Mr. Smart’s manslaughter conviction is similar to the offence charged and therefore carries with it significant prejudice. The Crown argues that the probative value of this conviction outweighs this prejudice because: (i) it shows that Mr. Smart’s criminal offending started in 2011, not 2016; and (ii) its seriousness is valuable information for the jury to assess whether the possibility of being held accountable for perjury will keep Mr. Smart honest and whether he will show any more respect for the truth than he has shown for human life.
[27] In my view, it is this third factor that weighs in favour of excising the manslaughter conviction. Given that the key issues in this case will be whether Mr. Smart acted in self-defence and his intent in firing his gun, a prior conviction for manslaughter raises a real risk that the jury, despite careful instructions, will engage in prohibited propensity reasoning. It invites an inference that because Mr. Smart previously unlawfully killed someone, he is more likely to have instigated the confrontation with the intent of killing one or more occupants in Jonathan Adamski’s car.
[28] Had the prior conviction for manslaughter been Mr. Smart’s only record, I may well have weighed these factors differently. However, given that the jury will have the entirety of his adult record before them, the added probative value of admitting his prior conviction for manslaughter is, in my view, significantly outweighed by the risk of prejudice. This case is distinguishable from that of Hussein, wherein the entirety of Mr. Hussein’s record was admitted. In Hussein, the risk of propensity reasoning was found to be low. In this case, the Crown acknowledges that the risk of propensity reasoning is significant. I share this concern. Although the offences before the court are more serious than manslaughter, the fact that Mr. Smart has previously been found to have unlawfully caused the death of another person will easily invite an inference that he is the kind of person who intentionally kills. As stated by Paciocco J.A., at para. 54 of Hussein, “[v]iolence is detestable, and it is seductive to believe that violent people likely committed the violent acts they are accused of committing”.
[29] Finally, the fourth factor: trial fairness and the risk of presenting a distorted picture to the jury. The Crown argues that trial fairness weighs heavily in favour of allowing cross-examination on Mr. Smart’s prior conviction for manslaughter. Specifically, the Crown argues that counsel for Mr. Smart vigorously challenged the credibility and character of the Crown’s witnesses by suggesting that they were lying about the level of their sobriety. Further, given this attack and the fact that Mr. Smart’s credibility will be a central issue for the jury’s determination, to excise or edit his prior manslaughter conviction would “deprive the jury of vital information and distort the case” for Mr. Smart in a “way that goes beyond fairness, and crosses into unfairness to the prosecution”. I disagree.
[30] First, Mr. Posner did not cross-examine Deshaun Daley, who was the front seat passenger in Jonathan Adamski’s car. Notably, Mr. Daley has a prior criminal record, which includes a recent conviction for possession of a prohibited or restricted firearm. The Crown argues that this was a tactical decision as “one does not undermine the goose that laid the golden egg”. That may well be true, but defence counsel did not even highlight the fact that Mr. Daley had a prior conviction for possession of a prohibited or restricted firearm – the very same conduct he admitted he engaged in on November 7, 2020.
[31] Second, while Mr. Posner challenged the testimony of three witnesses who were in the backseat of Jonathan’s car at the time of the shooting about their use of marijuana that day, and historically, this was not a character attack. In my view, these questions mounted an attack on their reliability as a witness, not their truthfulness. That they were all teenagers who admitted to smoking marijuana prior to the shooting was relevant to the accuracy of their account. When each denied that their consumption impacted their mental capacities, it was open to counsel to challenge this assertion; not by suggesting that they were lying, but that they underestimated its impact. This is not a case like R. v. Hines, [2001] O.J. No. 1435 (S.C.), wherein Dambrot J. refused to exclude all prior convictions for offences of violence primarily because the Crown witnesses were cross-examined on their prior records, including one key witness who was cross-examined “at considerable length” on what Dambrot J. considered a “trivial assault conviction for a schoolyard dispute” when the witness was 12-years old. The risk of presenting a distorted picture to the jury – a decisive factor in many of the cases cited by the Crown – is not in play in the present case. A risk of distortion does not arise simply because an accused, through their questioning of Crown witnesses, attempts to show that those witnesses should not be believed.
[32] Further, this is not a scenario in which the defence seeks to exclude or sanitize the entirety of Mr. Smart’s record. The jury will be informed of his entire adult record, which consists of five prior convictions, including two prior convictions for breaches of court orders. The jury will know that these convictions resulted in significant terms of imprisonment. To remove a dated youth conviction will not artificially make his record appear less significant. He has a significant record and is far from being presented to the jury as someone with an “unblemished past”.
E. Conclusion
[33] Having considered all four Corbett factors, in my view, the defence has established that the prejudice of admitting the manslaughter conviction outweighs its probative value. The manslaughter conviction, when considered in light of Mr. Smart’s several serious convictions as an adult, adds little to the jury’s ability to assess his credibility, yet could provide real insight into his propensity for violence which is a prohibited line of reasoning that must be guarded against.
[34] The jury will be instructed on the proper and improper use of this evidence. I will seek and rely upon the assistance of counsel to ensure that the jury is properly instructed on this issue. These instructions will make clear that Mr. Smart’s prior convictions cannot be used as evidence that the accused committed the alleged offences, or that the accused is the sort of person likely to commit the alleged offences. Rather, the prior convictions are only relevant to his credibility. I am confident that the jury will be able to follow such clear limiting instructions.
[35] It should be noted, however, that I make this ruling based on the record as it stands now. Should Mr. Smart put his character in issue, I may permit the Crown to reopen this issue for purposes of revisiting this ruling.
Released: May 13, 2025
J.M. Barrett