Corbett Applications -- The Admissibility of the Accused’s Criminal Record   

Pursuant to s. 12 of the Canada Evidence Act, a witness may be questioned as to whether he or she has been convicted of a criminal offence.

CANADA EVIDENCE ACT
Examination as to previous convictions
12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
Typically, the relevance of such evidence is in respect of the witness’s credibility; the evidence cannot be used as bad character evidence or for propensity reasoning.

There is no presumption against the admissibility of an accused person’s criminal record.  To make such a presumption risks keeping the true picture from the jury:

R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at paras. 33-35; R. v. N.A.P. (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3d) 70 (Ont.C.A.).

A trial judge does, however, possess the discretion to exclude all or part of an accused’s prior criminal record.  The test is whether permitting the Crown to ask the applicant if he has been convicted of the criminal offences at issue would result in an unfair trial.
This question is resolved by measuring the probative value of the prior convictions to an assessment of the applicant’s testimonial credibility against the prejudice from propensity reasoning that may result if the offences are revealed to a properly instructed jury.
R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.), at para. 5: The right to a fair trial is the context in which the balancing exercise must be effected.

Relevant factors to be Weighed

In Corbett, the Supreme Court of Canada set out the following factors that a court should consider when exercising its discretion:

(a) The nature of the previous conviction(s).  Given that the limited use of the prior record relates to the assessment of the witness’ credibility, a conviction for perjury or other crimes of dishonesty may be more telling about a person’s honesty and integrity than a conviction for possession of narcotics.
(b) The degree of similarity between the prior conviction and the alleged offence: the more similar the previous convictions are to the charges before the court, the greater the dangers of propensity reasoning;

(c) The remoteness or proximity of the prior offence(s);

(d)  Where the accused has attacked the character/credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view or misleading picture be left with the jury; and

(e)  The effectiveness of a limiting jury instruction.



Corbett, at paras. 152-158; see also R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont.C.A.).

 The nature of the defence attack on the Crown witnesses

If the defence puts forward evidence of a third party’s propensity to commit the offence (for instance, the criminal record of that individual put into evidence for that purpose), fairness dictates that similar evidence the Crown possesses relating to the accused can also be introduced.

R. v. McManus, 2017 ONCA 188, at paras 89-93; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.).

Limiting Instruction

A jury is presumed to follow the court’s instructions about the proper use of evidence of prior convictions.

Corbett, at p. 690.

Thus, a limiting instruction may minimize the danger of inadmissible propensity reasoning.

Ultimately however, a court must weigh the probative value of the prior convictions against the risk that a jury may engage in inadmissible propensity reasoning, even with limiting instructions.

R. v. Talbot, 2007 ONCA 81 (CanLII) at para. 33.

Corbett Applications on Appeal

Typically, deference is owed to a trial judge’s determination of a Corbett application, except where the decision is made on a wrong principle.

Wilson, at para. 32; R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 37.

However, no deference is owed where the trial judge fails to give reasons.

R. v. McManus, 2017 ONCA 188, at para 85.

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more