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A Trial Judge’s Reading Blog

CROSS-EXAMINATION OF ACCUSED ON CRIMINAL RECORD

R. v. A.J.K., 2022 ONCA 487, June 24, 2022, at paragraphs 48 to 50:

Where an accused testifies, their criminal record is presumptively admissible for purposes of assessing their credibility as a witness. Section 12(1) of the CEA constitutes legislative recognition of the fact that prior convictions can be relevant to a witness’ credibility: see R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 53. This means that the “character of the witness, evidenced by the prior conviction(s), is a relevant fact in assessing the testimonial reliability of the witness”: M.C.,at para. 54; R. v. Corbett, [1988] 1 S.C.R. 670,at pp. 685-86.

Even so, there is an accepted danger of propensity reasoning that accompanies an accused’s criminal record when it is elicited at the trial. Specifically, there is a danger the trier will reason that the accused has committed criminal offences in the past and, therefore, he is the type of person who would commit the alleged offence for which the accused is on trial.

Given the dangers associated with propensity reasoning, questioning an accused regarding a criminal record is limited to three areas: (1) the fact of conviction; (2) the date and place of conviction; and (3) the punishment imposed: Corbett, at pp. 696-97; M.C., at para. 55. The Crown is not permitted to ask questions about the conduct underlying the convictions or whether the accused testified at the trials leading to those convictions: Corbett, at pp. 696-97; M.C., at para. 55.