|
Evidence - Character Evidence (2). R. v. Hussein
In R. v. Hussein (SCC, 2026) the Supreme Court of Canada dismissed a further appeal (the CA also dismissed), this after the "trial judge dismissed Mr. Hussein’s Corbett application after concluding that the probative value of the criminal record outweighed its prejudicial effect".
The court summarizes the case respecting the admissibility of criminal records [under CEA s.12(1)] and the Corbett application exception, here in the larger context of character/tendency evidence:[1] The common law has long recognized that a criminal trial is not a forum to pass judgment on the general character of the accused. It upholds this principle by treating Crown-led evidence of an accused’s bad character as presumptively inadmissible and by prohibiting the trier of fact from inferring guilt simply because the accused appears to be the “type” of person to commit the crime. These constraints are not merely evidentiary rules but constitutional imperatives, for they preserve the integrity of the presumption of innocence and the right to a fair trial guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
[2] The provision at issue in this appeal, s. 12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), sits in tension with the foregoing, as it presumptively allows the Crown to adduce evidence of the accused’s prior convictions in order to impeach their credibility. In doing so, the provision departs from the common law’s carefully calibrated rules governing character evidence. There is no requirement that the accused put their character in issue before the Crown can have their criminal record admitted into evidence. Nor does the provision explicitly address the significant risk that, even though prior convictions are technically admissible only for the purpose of assessing the accused’s credibility, the trier of fact may nonetheless rely on the evidence to infer guilt using prohibited general propensity reasoning.
[3] Recognizing the dangerous potential of this provision, this Court, in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, determined that s. 12(1) of the CEA is consistent with s. 11(d) of the Charter on the basis that trial judges retain their common law discretion to exclude evidence when the prejudice it would cause to trial fairness outweighs its probative value. To structure the exercise of discretion in this context, this Court developed a framework outlining four factors that trial judges should consider when weighing the probative value and prejudicial effect of an accused’s prior convictions: (1) the nature of the prior convictions; (2) the recency or remoteness of the prior convictions; (3) the similarity between the prior convictions and the charge faced by the accused; and (4) the risk of presenting a distorted picture to the trier of fact (Corbett, at pp. 740-44, per La Forest J., dissenting).
[4] This appeal marks the first time that this Court has been asked to revisit the Corbett framework. The appellant, Awale Hussein, asserts that courts have interpreted and applied Corbett inconsistently and therefore asks this Court to adjust the rules governing the admission of an accused’s criminal record under s. 12(1) of the CEA, including by establishing that this evidence is subject to a presumption of inadmissibility and by confining its relevance to the issue of the accused’s honesty. This Court is also called upon to clarify the principles governing the exercise of a trial judge’s discretion to refuse cross-examination — specifically by identifying which convictions are probative of credibility, recognizing the role of social context as a factor, and delineating exactly when the distortion factor becomes relevant during a Corbett analysis.
[5] In my view, the Corbett framework has stood the test of time but warrants clarification and modification to ensure that it is applied in a predictable and principled manner. While I decline to read a presumption of inadmissibility into s. 12(1) of the CEA, this appeal provides this Court with an appropriate opportunity to specify with greater precision how the Corbett framework should be applied by trial judges.
....
(4) Summary of Principles
[117] The principles governing the exercise of a trial judge’s discretion to refuse the Crown’s cross-examination of the accused on their prior convictions pursuant to s. 12(1) of the CEA can be summarized in the following manner.
[118] When the accused brings a Corbett application to have part of their criminal record excluded, they must persuade the trial judge on a balance of probabilities that the prejudice it would cause to trial fairness outweighs its probative value on the issue of credibility. The admission into evidence of an accused’s prior conviction generally carries a significant risk of moral prejudice. Accordingly, to discharge their persuasive burden, the accused must demonstrate that a prior conviction lacks sufficient probative value to outweigh the significant prejudice typically inherent in this evidence.
[119] Sufficient probative value will exist only when the prior conviction permits the trier of fact to infer that the accused has a specific capacity or willingness to be dishonest at the time of the trial. This will largely depend on the nature of the offence. Traditional crimes of dishonesty and some administration of justice offences are often capable of supporting this credibility inference. By contrast, many crimes of violence are not. If a conviction cannot support the requisite credibility inference, or if it is unclear whether the conviction can do so, its probative value will generally be incapable of overcoming its prejudicial effect, and exclusion will be warranted.
[120] Other factors are relevant to an assessment of probative value. A remote prior conviction will be less probative of the accused’s capacity for dishonesty at the time of the trial compared to a recent conviction. Additionally, when a prior conviction stems in part from circumstances of disadvantage, its probative value on the issue of credibility will be diminished. Youth offences will generally have low probative value with respect to an adult accused’s credibility.
[121] The probative value of prior convictions can also increase when there is a risk of the trier of fact being misled about the facts it is asked to judge. The risk of distortion appears when, for reasons unrelated to the facts of the case, the defence asks the trier of fact to draw an adverse credibility inference against an important Crown witness based on their alleged bad character. In these circumstances, the defence is suggesting that, because of their bad character, the Crown witness is the “type” of person to lie and is therefore likely to do so on the witness stand. Trial judges should give this factor a weight that is proportionate to the risk of distortion, recognizing that the theory underlying this factor’s inclusion in the Corbett framework is distinct from that underlying the other Corbett factors.
[122] The prejudice caused by a prior conviction can also be impacted by various factors. For example, if a high degree of similarity exists between a prior conviction and the offence charged, there will, generally speaking, be a profound risk of moral prejudice and the prior conviction will be admitted into evidence only exceptionally. Certain types of serious crimes, including some violent offences, can also elevate the risk of prohibited propensity reasoning. Moreover, the prejudice caused by a prior conviction can be elevated when the accused is a member of a disadvantaged group that is subject to discriminatory biases and stereotyping. The strength of the Crown’s case does not mitigate the prejudice associated with the admission of a prior conviction.
[123] Finally, it bears repeating that, while these principles provide structure for an exercise of discretion that safeguards trial fairness for the accused, some flexibility in their application is inevitable. This is a contextual inquiry. Trial judges, as evidentiary gatekeepers, are best positioned to assess probative value and prejudicial effect in light of the specific circumstances of the case. When these guiding principles are respected by trial judges, deference is owed on appeal.
|
