|
Criminal - Pardons. R. v. Foreshaw
In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered provisions of the Criminal Records Act (CRA) [s.6: 'Custody of Records' and s.2.1-4.4: 'Suspension of Criminal Records' (by the Parole Board)], here in resolving an appeal issue regarding cross-examination on such material. These extracts are useful in explaining the effect of 'criminal pardons':(b) Ruling by the Trial Judge
[16] The trial judge ruled that it would be impermissible and unfair for the defence to cross-examine Mr. Brown about this record suspension. In so ruling, she relied on s. 6(2) of the Criminal Records Act, R.S.C., 1985, c. C-47 (“CRA”), which stipulates that the information relating to an offence for which a record suspension has been granted is to be “kept separate and is not to be disclosed” to anyone. She also cited s. 10 of the CRA that provides that it is an offence for any person to contravene the CRA. Further, she noted that the process for approval by the Minister of Public Safety and Emergency Preparedness for disclosure under s. 6(2) had not been commenced.
[17] The trial judge expressly declined to follow the decision of Wein J. in R. v. Gyles, [2003] O.J. No. 1924 (Ont. S.C.). There, Wein J. held that if Parliament did not want a pardoned record to be the subject of cross-examination under the Canada Evidence Act, R.S.C. 1985, c. C-5, then it would have used clear language to prohibit such an examination. The trial judge found that this conclusion ignored the fact that the CRA prevents the disclosure of this information without the Minister’s permission. She also found that, given that there was no information regarding the details of the record suspension, it would be unfair to permit cross-examination. In the end, she refused to permit cross-examination on Mr. Brown’s record suspension and informed the jury that he had no criminal record.
[18] The trial judge relied on her holding in respect of cross-examination of Mr. Brown for her ruling on the cross-examination of Mr. Kirinde. She held again that there was nothing before the court about Mr. Kirinde’s record suspension, and there was no ministerial approval to disclose the fact of the conviction. In addition, she emphasized that the underlying facts surrounding the offence were part of the conviction:The underlying facts are part of that conviction -- even if the defence undertakes not to mention before the jury, any fact of a conviction, but just puts to Mr. Kirinde that he disobeyed a police officer's lawful demand 12 or so years ago.
For reasons set out in my October 30th ruling on this issue, leave was denied. I find that the parsing of the fact of the conviction and the underlying facts is not permissible pursuant to the intent of the Criminal Records Act. It is an artificial attempt to defeat the meaning and purpose of that legislation. [19] Accordingly, the trial judge prohibited cross-examination on Mr. Kirinde’s record suspension. She declined to determine whether the refusal to provide a breath sample was a crime of dishonesty. Mr. Kirinde was asked by the Crown if he had a criminal record and he testified that he did not.
(c) Legal Principles
[20] The pertinent parts of s. 6 of the CRA provide as follows:6 (1) The Minister may, by order in writing addressed to a person having the custody or control of a judicial record of a conviction in respect of which a record suspension has been ordered, require that person to deliver that record into the Commissioner’s custody.
(2) A record of a conviction in respect of which a record suspension has been ordered that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be kept separate and apart from other criminal records. Subject to subsection (2.1), no record of a conviction is to be disclosed to any person, nor is the existence of the record or the fact of the conviction to be disclosed to any person, without the prior approval of the Minister. [21] The leading case on the effect of a record suspension is Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3. The facts of that case are very different from the case at bar. There, the court was concerned with a situation where the appellant had applied to be a judge but failed to disclose the existence of a previous conviction for which he had received an administrative pardon. That said, the case is instructive regarding, among other things, the effects of what is now known as a record suspension. The court described the effects, at para. 116, as follows:Sections 5 and 6(2) C.R.A. set out the effects of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it vacates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being kept separate and apart: in other words, the criminal record is expunged. In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences. Section 5 (a)(ii) C.R.A. provides that the pardon is evidence that “the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character” (emphasis added), implying that it still exists and could so reflect. Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect. Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct. [Emphasis in original.] [22] The court went on to conclude that the effect of a record suspension is not to retroactively wipe out a conviction. In the court’s view, this mean that, despite the fact that a person has received a record suspension, they may still be asked about the conviction and cannot deny its existence. Therefore, the appellant had an obligation to disclose his previous conviction as part of his application to be a judge despite the fact that he had received a record suspension.
[23] I pause to note that the effect of a record suspension is different than that of a free pardon granted under s. 748 of the Criminal Code. Pursuant to that section, where a free pardon is granted, “that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted.”
[24] The next significant case on this issue is Gyles, which had a factual situation that was closer to the case at bar. The accused brought an application to cross-examine a Crown witness on a prior conviction for which he was granted an administrative pardon. Wein J., relying on Therrien, observed that a record suspension does not operate to retroactively wipe out a previous conviction. As noted above, she concluded that if Parliament intended to limit the right in s. 12 of the Canada Evidence Act it could have done so explicitly. In ruling that the conviction could be the subject of cross-examination, Wein J. offered the following commentary on the practical impacts of her ruling at para. 19:Given the evidentiary weight to be afforded to the opinion of the National Parole Board, it may well be that defence counsel will, in most circumstances, hesitate to cross-examine on pardoned convictions in the absence of any direct connection to the matter being tried. To some extent, the power of the judge to limit the scope of cross-examination can also avoid any unfairness to the witness. Nonetheless, in my view the Criminal Records Act does not go so far as to prevent questioning and does not in itself prevent cross-examination on the underlying facts, in the rare case where the pardon becomes known. [25] In Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698, the court considered a situation where an individual who applied for a job as a police officer had previously received a conditional discharge. Because three years had elapsed since the time of her sentencing, she had been pardoned under s. 6.1(1)(b) of the CRA, which provides:6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
(a) more than one year has elapsed since the offender was discharged absolutely; or
(b) more than three years have elapsed since the day on which the offender was ordered discharged on the conditions prescribed in a probation order. [26] The court referenced Therrien and provided the following commentary regarding what are now known as record suspensions at para. 20:As Gonthier J. noted in Therrien, the use of the conditional in s. 5(a)(ii) is significant. A pardon does not have an absolute effect and does not erase the past. Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence (Therrien, at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results from prejudice and is attached solely to the finding of guilt must be resisted, and the finding of guilt should no longer reflect adversely on the pardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity. [27] The court rejected the suggestion that the employer could not have regard to the facts underlying a conviction, reasoning that “to accept the respondent’s argument that the facts giving rise to a conviction may not be considered in assessing whether a candidate is of good moral character would mean that a pardon would not only restore the convicted person’s reputation but would also erase the past, which is not the case”: Montréal, at para. 24.
[28] Finally, a more recent decision of this court is instructive on this issue. In R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474, the court was also considering a case under s. 6.1 of the CRA. The accused plead guilty in 2016 to assaulting his wife. A handwritten notation on his criminal record indicated that he had received an absolute discharge in 2011 for a previous assault on his wife. The trial judge declined to grant the accused a second discharge on the basis that the first discharge had not deterred him from committing another domestic assault. The summary conviction appeal court allowed the accused's appeal, finding that the trial judge erred in considering the accused's discharge.
[29] On further appeal, this court held that s. 6.1(1)(a) “precludes the disclosure not only of the record, but also of the existence and fact of an absolute discharge beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained”: at para. 9. Therefore, the court found that the trial judge erred in considering the accused’s previous discharge.
[30] Despite the foregoing, this court agreed with the ruling of the summary conviction appeal judge that it was permissible for the purposes of sentencing to have regard to the “factual reality that the incident on which there has been a plea is not the first incident”: Montesano, at para. 11. Therefore, while reliance on the discharge was prohibited, the court did rely on the fact that there was a previous assault in crafting an appropriate sentence. In other words, the court did not go so far as to hold that the existence of the previous assault could not be used by the court.
(d) Application of Legal Principles
[31] On appeal, the appellant restricts his submission to the order prohibiting cross-examination of Mr. Kirinde, arguing that the trial judge erred in law in making that order. I agree with that submission.
[32] In considering this issue it is essential to review the impact of a record suspension. Therrien establishes that, unlike a free pardon, a record suspension does not deem that the offender never committed the offence. Thus, a person may still be asked about such a conviction and cannot deny its existence. It follows, in my view, that a witness may be cross-examined on an offence even where it is subject to a record suspension. Such cross-examination could include both the facts underlying the conviction as well as the conviction itself.
[33] Cross-examination does not impact the fact that the National Parole Board found the person to be of good conduct and that the conviction should no longer reflect adversely on the person’s character. At most, it invites the trier of fact to consider whether the previous conviction impacts the credibility assessment of the witness. That is not an invitation for the trier of fact to adjudge the witness’ character, it is only a factor that the trier of fact may consider in determining whether the conviction impacts the credibility of the witness’ testimony. This is similar to the situation in Therrien. The court found there that those responsible for deciding if the appellant should be recommended as a judge should have the information available to them about his conviction to assess its impact on his candidacy. It was not a finding that he was of bad character; it was only a factor that they should be entitled to consider.
[34] Cross-examination on an offence that is subject to a record suspension also does not impact on the removal of any disqualification under any federal Act or regulation. Finally, cross-examination does not impact on the record of conviction being kept separate and apart. Therefore, none of the effects of a record suspension identified in Therrien are compromised by a cross-examination.
[35] Moreover, given that a witness can be asked about the underlying facts of the offence and about the fact of the conviction, it would be contrary to the purposes underlying the CRA to find that the existence of the record suspension could not be adduced in evidence. Taking this case as an example, it would be inconsistent with the policy objective of minimizing the future consequences of a previous conviction if the defence could cross-examine on the facts of the offence and the fact that it resulted in a conviction, but the Crown was prohibited from adducing evidence that Mr. Kirinde had received a record suspension.
[36] In summary, the trial judge erred in law in finding that the defence was prohibited from cross-examining Mr. Kirinde on his previous conviction. However, that does not end the analysis. The Crown submits that the curative proviso should be applied. I agree that this is a situation where the trial judge’s legal error did not result in a substantial wrong or miscarriage of justice.
[37] The conviction for which the record suspension had been granted was a dated one for an offence that cannot be considered to be a crime of dishonesty. While it is a serious offence, there is nothing that is inherently dishonest in refusing to provide a breath sample. Nor am I satisfied that this was an offence against the administration of justice, as was suggested by the appellant’s counsel in oral argument. Those offences are listed in Part IV of the Criminal Code, which does not include any offence that is analogous to refusing to provide a breath sample.
[38] Further, if the defence were permitted to cross-examine about the conviction, the Crown would have been able to adduce evidence regarding the record suspension. In addition, the trial judge would instruct the jury about the record suspension, including the fact that the National Parole Board, after making the inquiries specified in the CRA, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character. Given these facts, the prohibition against cross-examination did not result in a substantial wrong or miscarriage of justice.
[39] Based on the foregoing, I would dismiss this ground of appeal.
|
