Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Hussein, 2023 ONCA 253, April 14, 2023, at paragraphs 26 to 36:

The criminal convictions of anyone who testifies, including accused persons who choose to do so, are presumptively admissible as evidence relevant in challenging their credibility as witnesses: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 139 (citations omitted); Canada Evidence Act, s. 12(1). Convictions for crimes of dishonesty, including offences against the administration of justice such as breaching court orders (R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 56), and theft-based offences such as robbery (R. v. Thompson (2000), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31), are of obvious relevance since they provide “particularly informative” circumstantial evidence that the accused has a dishonest character: King, at para. 139. Convictions for other types of criminal offences “have the potential to demonstrate a ‘[l]ack of trustworthiness’ on the part of the witness, one that is ‘evinced by [an] abiding and repeated contempt for the laws which [the accused] is legally and morally bound to obey’”: King, at para. 140, citing R. v. Gayle (2001), 54 O.R. (3d) 36 (C.A.), at para. 81 (other citations omitted); see also R. v. Nagy, 2023 ONCA 184, at paras. 55-58.

When the Crown seeks to use the criminal record of an accused person as evidence of their lack of testimonial credibility in a jury trial, there is a danger that jurors will, consciously or subconsciously, use this evidence impermissibly as proof of guilt. This is because jurors learning of the bad character of the accused through their criminal record may engage in impermissible “general propensity reasoning” by inferring that “the accused is the type of person to have committed the offence for which they stand trial because of their offending past”: King, at paras. 141, 193. Moreover, jurors may find that the kinds of crimes the accused has been found guilty of support more specific inferences about guilt. Although probative specific inferences about guilt may appropriately be drawn when permitted by the trial judge after a similar fact evidence ruling, they are not to be drawn based on information from a criminal record that is proved pursuant to s. 12 of the Canada Evidence Act, since a criminal record admitted under s. 12 has been admitted for the limited purpose of gauging the credibility of the accused as a witness.

Three safeguards have been developed to reduce the risk that the criminal record of an accused person will be misused as evidence of guilt, if admitted.

First, the cross-examination is limited to the fact that the conviction has occurred including its date and place, the offence of which the accused was convicted, and the sentence imposed: M.C., at para. 55. This reduces the risk of jurors receiving the details required for specific propensity reasoning or of being overwhelmed with prejudicial information about the accused person’s general bad character.

Second, trial judges must direct jurors as to how they may or may not use the prior convictions put to an accused on cross-examination: R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 690-91.

Third, trial judges have discretion, when an accused brings a Corbett application, to prevent the cross-examination of the accused person on all or some of their criminal convictions, where the prejudicial effect would outweigh the probative value in doing so: R. v. Underwood, [1998] 1 S.C.R. 77, at p. 79, citing Corbett.

The probative value of criminal convictions as evidence of dishonesty will vary with their nature, number, and recency: M.C., at para. 57. The factors trial judges may consider in exercising this discretion is not closed, but “trial judges typically consider: (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury”: King, at para. 145; see also Corbett, at pp. 740-44.

In terms of the nature of the convictions and the similarity between the offences charged and the prior convictions, courts should be wary of admitting evidence of convictions for a similar crime to avoid the possibility that jurors may convict because of the accused’s disposition: R. v. Brooks (1998), 41 O.R. (3d) 661 (C.A.).

The “risk of presenting a distorted picture to the jury” is typically engaged when a Crown witness has been subjected to an attack on their credibility “based on his or her character [for dishonesty], especially as disclosed in his or her criminal record”: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.  In such cases a trial judge may consider the need to maintain a fair balance between the parties, given the potential unfairness that could arise if the accused is able to keep their own discreditable character from jurors, after having demonstrated the discreditable character of a Crown witness.

Based on these same considerations, instead of prohibiting the use of the accused’s criminal record, trial judges may restrict the criminal offences that may be used or modify the description of offences to reduce the risk of prejudice: R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, at para. 19, leave to appeal refused, [2010] S.C.C.A. No. 33421; R. v. Grizzle, 2016 ONCA 190, at paras. 17-19. An important consideration is whether the excision of a conviction, in whole or in part, would leave the jury with incomplete and therefore inaccurate information: McManus, at para. 82.

Finally, “trial judges are afforded a wide berth of discretion in making their Corbett determinations”: King, at para. 201, citing R. v. Charland, [1997] 3 S.C.R. 1006, at pp. 481-82; R. v. Wilson (2006), 210 C.C.C. (3d) 23 (Ont. C.A.). “[A]n appellate court ought not to intervene [in a trial judge’s Corbett decision] ‘absent error in principle, misapprehension of material facts, or an exercise of the discretion which, in the totality of the circumstances, must be regarded as unreasonable’”: R. v. Clarke, 2014 ONCA 777, 319 C.C.C. (3d) 127, at para. 5.