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Evidence - Criminal Records (2). R. v. Marshall
In R. v. Marshall (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this after he "was convicted of one count of second-degree murder after a trial by jury".
The court considered a Corbett-CEA s.12 application, here in an indigenous defendant context:b. The Legal Principles to Be Applied on a Corbett Application Brought by an Indigenous Offender
[46] Evidence of “bad character” unrelated to the charge for which the accused is on trial is generally inadmissible at trial: Corbett, [at p. 725, per La Forest J. (dissenting, but not on this point); R. v. D.S., 2024 ONCA 831, at para. 24.
[47] However, s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5, creates a legislative exception to this rule by permitting a witness, including an accused person who chooses to testify, to be cross-examined on their criminal record. Accordingly, “cross-examination on the accused’s criminal record will be the usual course”: R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304, at para. 13, citing R. v. P. (N.A.) (2002), 2002 CanLII 22359 (ON CA), 167 O.A.C. 176 (C.A.), at para. 20.
[48] The presumptive admissibility of prior convictions rests on the theory that they are relevant to credibility. Prior convictions are used, along with other evidence, to assess a witness’ credibility as “[t]here 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”: Corbett, at p. 685.
[49] An accused person with a criminal record who testifies is not, however, like any other witness. In King, at para. 141, this court explained that:[T]he 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. [50] An accused is therefore entitled to bring a Corbett application to seek to edit or exclude entirely, their criminal record.
[51] The starting point on a Corbett application is that juries should receive all relevant information accompanied, when necessary, by a clear limiting instruction regarding the use that can be made of the tendered record: Corbett, at p. 691. However, if the trial judge is satisfied that the prejudicial effect of a conviction will outweigh its probative value, the trial judge may exercise discretion to exclude that conviction and the Crown will only be entitled to cross-examine the defendant on the admissible convictions: Corbett, at p. 692; P. (N.A.), at para. 17.
[52] In this context, the probative value of a conviction is informed by “the connection between the fact of the prior conviction and the credibility … of the accused”, while the prejudicial effect arises out of the potential for propensity reasoning that jurors may engage in, once they are made aware of that conviction: King, at para. 176.
[53] Whether and to what extent a trial judge may edit a record depends on case-specific circumstances including: (i) the nature of the previous convictions; (ii) the similarity of the previous convictions to the matter under prosecution; (iii) the remoteness of the previous convictions; and (iv) the need to prevent an unbalanced picture being presented to the jury: Corbett, at pp. 698 and 740-44. The nature of a previous conviction directly affects the extent to which it bears upon credibility: Corbett, at pp. 685-86.
[54] Most notably, convictions for crimes of dishonesty provide circumstantial evidence that the accused has a dishonest character and may demonstrate contempt for laws: King, at para. 140. Convictions for other types of crimes, however, may also bear upon credibility because they may demonstrate a lack of trustworthiness as evinced by an enduring disrespect for the law: King, at para. 140; Corbett, at p. 686, citing State v. Duke (1956), 123 A.2d 745 (S.C.N.H.), at p. 746.
[55] This court confirmed that Gladue principles apply in the context of a Corbett application brought by an Indigenous accused to guide a trial judge’s determination of “whether it would prejudice an accused’s right to a fair trial to admit into evidence some or all of the accused’s criminal record”: King at para. 171. Where there are unique systemic or background factors that may have played a part in bringing the Indigenous offender before the courts, judges must take those factors into consideration. They may also consider broader systemic factors affecting Indigenous people more generally: see Gladue, at paras. 66 and 83-84; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.
[56] Such factors, where applicable, are to be considered when determining the degree to which a prior conviction of an Indigenous accused will assist in advancing the credibility inquiry, or the probative strength of the conviction-to-credibility inference. They are intended to supplement, not to replace the “long-applied guiding criteria set out in Corbett”: King, at para. 192.
[57] When weighing the probative value of a given conviction, judges should consider whether the accused has proffered evidence to “demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction.” This is a contextual inquiry to “[allow] the trial judge to determine whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law, or whether the impact of the experience of racism on this particular accused’s life renders the credibility inference so tenuous that admission of the conviction is gutted of its probative value”: King, at paras. 179-92.
[58] When assessing prejudicial effect, trial judges must “consider whether in the context before them, the accused is at elevated risk of prejudice because of racist stereotypes” that relate to credibility, worthiness and criminal propensity, which “cause analytical problems in applying the law and may prevent triers of fact from assessing the credibility of Indigenous people fairly and accurately”: King, at paras. 194, 196.
[59] There need not be evidence of a direct causal link between a conviction and the systemic racism experienced by Indigenous people, but “there must be some evidence to support the circumstances that have impacted the accused’s life”. The focus must remain on preserving the fair trial right by placing evidence before the trier of fact that will assist their credibility assessment, without risking improper propensity reasoning. As such, “[w]hat the accused must do within the Corbett voir dire is … demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction”: King, at paras. 182-84.
[60] Applying the Gladue principles on a Corbett application does not necessarily direct a different result, nor is it intended to redress broad social problems or remedy past disadvantage. Instead, “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”: King, at para. 175.
[61] King thus reaffirms the Corbett framework, while recognizing that Gladue principles inform the analysis. It represents an elaboration, not an abandonment, of the Corbett framework. King directs trial judges to continue to apply the familiar and established principles set out in Corbett, but in a way that is sensitive to the systemic and background factors that may have affected a particular Indigenous accused’s path to the court.
[62] On an appeal from a Corbett application, deference is owed to the trial judge’s exercise of discretion in editing the criminal record, unless the trial judge made an error in principle, misapprehended the evidence, or exercised his discretion unreasonably: R.D., at para. 13; P. (N.A.), at para. 17; and R. v. Mayers, 2014 ONCA 474, at para. 3. . R. v. Mohammad-Daud
In R. v. Mohammad-Daud (Ont CA, 2024) the Ontario Court of Appeal considers the admission of prior convictions in a criminal trial [CCC s.666 - 'Evidence of character']:[8] Evidence of prior convictions is admissible under s. 666 of the Criminal Code, R.S.C, 1985, c. C-46, where the accused has put his character in issue. The trial judge found that the appellant put his character in issue by seeking in his testimony “to foster the impression that he is a bad driver who is accident prone, but that he does not have the moral disposition to intentionally hit someone with a motor vehicle.” . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal against an attempted murder conviction. In these extracts the court upholds the trial judge in dismissing the defendant's 'Corbett application' [admissibility of criminal record], which was commenced immediately after the Crown's case closed:[13] The trial judge dismissed the Corbett application. In doing so, he concluded, at para. 20: “The probative value of the Applicant's record outweighs any prejudice [to] the Applicant and that prejudice can be addressed through a properly worded instruction.”
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