Simon's Megalomaniacal Legal Resources

Evidence - Criminal Records

. R. v. Hussein

In R. v. Hussein (Ont CA, 2023) the Court of Appeal considered a Corbett application, in which the criminal defence seeks to "prohibit the use of the accused's record of conviction in cross-examination for the purpose of attacking their credibility." [The Criminal Law Notebook, 17 April 2023]:

The Applicable Law

[26] The criminal convictions of anyone who testifies, including accused persons who choose to do so, are presumptively admissible as evidence relevant in challenging their credibility as witnesses: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 139 (citations omitted); Canada Evidence Act, s. 12(1). Convictions for crimes of dishonesty, including offences against the administration of justice such as breaching court orders (R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 56), and theft-based offences such as robbery (R. v. Thompson (2000), 2000 CanLII 5746 (ON CA), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31), are of obvious relevance since they provide “particularly informative” circumstantial evidence that the accused has a dishonest character: King, at para. 139. Convictions for other types of criminal offences “have the potential to demonstrate a ‘[l]ack of trustworthiness’ on the part of the witness, one that is ‘evinced by [an] abiding and repeated contempt for the laws which [the accused] is legally and morally bound to obey’”: King, at para. 140, citing R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 54 O.R. (3d) 36 (C.A.), at para. 81 (other citations omitted); see also R. v. Nagy, 2023 ONCA 184, at paras. 55-58.

[27] When the Crown seeks to use the criminal record of an accused person as evidence of their lack of testimonial credibility in a jury trial, there is a danger that jurors will, consciously or subconsciously, use this evidence impermissibly as proof of guilt. This is because jurors learning of the bad character of the accused through their criminal record may engage in impermissible “general propensity reasoning” by inferring that “the accused is the type of person to have committed the offence for which they stand trial because of their offending past”: King, at paras. 141, 193. Moreover, jurors may find that the kinds of crimes the accused has been found guilty of support more specific inferences about guilt. Although probative specific inferences about guilt may appropriately be drawn when permitted by the trial judge after a similar fact evidence ruling, they are not to be drawn based on information from a criminal record that is proved pursuant to s. 12 of the Canada Evidence Act, since a criminal record admitted under s. 12 has been admitted for the limited purpose of gauging the credibility of the accused as a witness.

[28] Three safeguards have been developed to reduce the risk that the criminal record of an accused person will be misused as evidence of guilt, if admitted.

[29] First, the cross-examination is limited to the fact that the conviction has occurred including its date and place, the offence of which the accused was convicted, and the sentence imposed: M.C., at para. 55. This reduces the risk of jurors receiving the details required for specific propensity reasoning or of being overwhelmed with prejudicial information about the accused person’s general bad character.

[30] Second, trial judges must direct jurors as to how they may or may not use the prior convictions put to an accused on cross-examination: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 690-91.

[31] Third, trial judges have discretion, when an accused brings a Corbett application, to prevent the cross-examination of the accused person on all or some of their criminal convictions, where the prejudicial effect would outweigh the probative value in doing so: R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, at p. 79, citing Corbett.

[32] The probative value of criminal convictions as evidence of dishonesty will vary with their nature, number, and recency: M.C., at para. 57. The factors trial judges may consider in exercising this discretion is not closed, but “trial judges typically consider: (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury”: King, at para. 145; see also Corbett, at pp. 740-44.

[33] In terms of the nature of the convictions and the similarity between the offences charged and the prior convictions, 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: R. v. Brooks (1998), 1998 CanLII 5686 (ON CA), 41 O.R. (3d) 661 (C.A.).

[34] The “risk of presenting a distorted picture to the jury” is typically engaged when a Crown witness has been subjected to an attack on their credibility “based on his or her character [for dishonesty], especially as disclosed in his or her criminal record”: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82. In such cases a trial judge may consider the need to maintain a fair balance between the parties, given the potential unfairness that could arise if the accused is able to keep their own discreditable character from jurors, after having demonstrated the discreditable character of a Crown witness.

[35] Based on these same considerations, instead of prohibiting the use of the accused’s criminal record, trial judges may restrict the criminal offences that may be used or modify the description of offences to reduce the risk of prejudice: R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, at para. 19, leave to appeal refused, [2010] S.C.C.A. No. 33421; R. v. Grizzle, 2016 ONCA 190, at paras. 17-19. 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: McManus, at para. 82.

[36] Finally, “trial judges are afforded a wide berth of discretion in making their Corbett determinations”: King, at para. 201, citing R. v. Charland, 1997 CanLII 300 (SCC), [1997] 3 S.C.R. 1006, at pp. 481-82; R. v. Wilson (2006), 2006 CanLII 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont. C.A.). “[A]n appellate court ought not to intervene [in a trial judge’s Corbett decision] ‘absent error in principle, misapprehension of material facts, or an exercise of the discretion which, in the totality of the circumstances, must be regarded as unreasonable’”: R. v. Clarke, 2014 ONCA 777, 319 C.C.C. (3d) 127, at para. 5.

. Costanza v. Desjardins Financial Security Life Assurance Company

In Costanza v. Desjardins Financial Security Life Assurance Company (Ont CA, 2023) the Court of Appeal describes the 'proper method' to prove criminal convictions:

[56] My conclusion that the application judge erred in disregarding the admissions by Ms Skojo should not be read as suggesting that a CPIC printout is sufficient proof of a prior conviction in the absence of an admission. The proper method to prove the existence of a criminal conviction, if it is not admitted, is with a certified copy of the Indictment or Information,[3] as the case may be: Evidence Act, R.S.O. 1990, c. E.23, s. 22.1; F.(K.) v. White (2001), 2001 CanLII 24020 (ON CA), 53 O.R. (3d) 391 (C.A.), at paras. 5, 21-22; Andreadis v. Pinto (2009), 2009 CanLII 50220 (ON SC), 98 O.R. (3d) 701 (S.C.J.), at paras. 10, 14-15; D. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence in Canada, 8th ed., (Toronto: Irwin Law, 2020), at pp. 188-91; S. Lederman, A. Bryant and M. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), at paras. 19.217-19.220.

. R. v. King

In R. v. King (Ont CA, 2022) the Court of Appeal considered the admissibility of criminal convictions, here in the criminal context:

(b) Corbett Applications in General

[137] In order to understand the issue in dispute, it is first necessary to orient ourselves to the general principles that apply to Corbett applications.

[138] This orientation starts with s. 12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Section 12(1) provides that once a witness takes the stand, thereby putting their credibility at issue, cross-examining counsel are presumptively allowed to adduce evidence of prior convictions. It states: “A witness may be questioned as to whether the witness has been convicted of any offence…”. This applies to all witnesses, including an accused who chooses to testify in their own defence.[3]

[139] The presumptive admissibility of prior convictions rests on the theory that they are relevant to a witness’ credibility when testifying: Corbett, at pp. 685-86; R. v. Stratton (1978), 1978 CanLII 1644 (ON CA), 42 C.C.C. (2d) 449 (Ont. C.A.), at p. 461; R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; and R. v. P. (N.A.) (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 20. Indeed, as Dickson C.J. said in Corbett, at p. 685: “There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness”, “a fact which a jury might take into account in assessing credibility.”

[140] The nature of the previous conviction directly affects the extent to which it bears upon credibility. Historically, convictions for offences such as direct acts of deceit, fraud, cheating, theft and disrespect for the administration of justice have been considered particularly informative of a witness’ honesty: Brown, at p. 342; M.C., at para. 56; and R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 54 O.R. (3d) 36 (C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359. At the same time, convictions for other types of offences can also inform credibility assessments. As noted in Corbett, at p. 686, in a passage adopted from State v. Duke (1956), 123 A.2d 745 (S.C.N.H.), at p. 746: even where convictions are disconnected from what are thought to be classic crimes of dishonesty, they have the potential to demonstrate a “[l]ack of trustworthiness” on the part of the witness, one that is “evinced by [an] abiding and repeated contempt for laws which [the accused] is legally and morally bound to obey”: see also Gayle, at para. 81; R. v. Thompson (2000), 2000 CanLII 5746 (ON CA), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31; and M.C., at para. 56.

[141] With respect to a non-accused witness, typically there is no problem with the trier of fact learning about their history for prior discreditable conduct. For an accused, however, the concern is that when their criminal record follows them to the witness stand there is a risk that the convictions will be used not only to assess credibility but also for an improper line of reasoning: that the accused’s prior offending conduct means that they are the type of person to have committed the offence with which they are now charged.

[142] Accordingly, two important limitations have been placed on the use of an accused’s prior convictions. The first limitation is that, unlike other witnesses, the cross-examination of an accused on their criminal record is confined to convictions alone. The second limitation is that, in the normal course, barring the accused doing something that justifies a broader approach, they may only be cross-examined on three narrowly circumscribed areas: (1) the offence convicted of; (2) the date and place of the conviction; and (3) the punishment imposed in the wake of the conviction: Corbett, at pp. 696-97; Stratton, at pp. 466-67; M.C., at para. 55; and R. v. A.J.K., 2022 ONCA 487, at para. 50.

[143] But these limitations are not always sufficient to protect against the prejudice that can arise from the trier of fact learning of the accused’s offending past. Accordingly, in some circumstances, an accused who wishes to testify will seek to have their entire criminal record, or at least some convictions, excluded from the Crown’s arsenal for cross-examination. The presumptive admissibility of these convictions pursuant to s. 12(1) of the Canada Evidence Act places the onus for any such application directly on the defence.

[144] This is where the “Corbett application” comes in. A Corbett application is brought at the end of the Crown’s case and ruled upon before the accused is asked to say whether they will be calling a defence: R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, at paras. 7-9.

[145] The decision on a Corbett application is a discretionary one. Where the trial judge is satisfied on a balance of probabilities that the probative value arising from the criminal record is outstripped by the prejudicial effect that may arise from its admission, otherwise admissible convictions will be excluded. While not an exhaustive catalogue of factors, in calibrating the probative value and prejudicial effect of admitting the accused’s prior convictions, trial judges typically consider: (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury: see Corbett, at p. 698, per Dickson C.J., and at pp. 740-44, per La Forest J. (dissenting); M.C., at para. 59; and R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.

. R v Pascal

In R v Pascal (Ont CA, 2020) the Court of Appeal summarizes the cross-examination that a witness may be subjected to regarding their criminal records and related behaviour:

[108] Section 12(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, permits questioning a witness on whether they have been convicted of any offence. The fact that a witness has been convicted of a crime is relevant to that person’s trustworthiness as a witness. Some convictions – for example, offences involving dishonesty or false statements – have a greater bearing on testimonial trustworthiness than others. The probative value of prior convictions also varies with other factors. The number of prior convictions. Their proximity or remoteness at the time of the witness’ testimony. See e.g. R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont. C.A.), at para. 9.

[109] As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony. The purpose of this cross-examination is to impeach the witness’ credibility: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 443-44, leave to appeal refused, [1974] S.C.R. viii; R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.), pp. 510-11; and R. v. Gassyt (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 37, leave to appeal refused, [1999] 2 S.C.R. vi.

[110] As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness’ character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross-examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown: Gonzague, at p. 511; Gassyt, at paras. 36-38; and R. v. Titus, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259, at p. 263.