R. v. I.T., 2024 ONSC 6176
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[4] The admissibility of a witness’s criminal record is governed by s.12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5 which states:
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.
[5] Section 12 of the Canada Evidence Act is made applicable to youth records pursuant s. 81 of the Youth Criminal Justice Act, S.C. 2002, c. 1. Therefore, this makes I.T.’s prior youth record presumptively admissible for the purpose of assessing his credibility when he testifies in his own defence. It is agreed that the convictions do not fall within the access period restrictions for youth records as found in Part 6 of the Youth Criminal Justice Act. Thus, the Crown is not precluded for that reason from cross-examining I.T. on such youth findings: R. v. Sheik-Qasim, (2007), 2007 CanLII 52983 (ON SC), 230 C.C.C. (3d) 531 (Ont. S.C.J.); R. v. Hammerstrom (2018), 363 C.C.C. (3d) 430 (B.C.C.A.).
[6] In Corbett, the Supreme Court of Canada upheld the constitutionality of s. 12 when an accused is cross-examined on their previous convictions and found the section did not violate the right to a fair trial nor was it contrary to the principles of fundamental justice. In coming to this conclusion, the court determined that the preferred approach was to permit the jury to have all relevant information with a proper limiting instruction given as to its permissible use. However, a discretion in the trial judge to exclude evidence of previous convictions in the appropriate case was recognized when the right to a fair trial required it. The test for doing so is familiar: the onus is on the defence to prove that the probative value of a criminal record on the credibility of the accused is outweighed by the risk of prejudice: Corbett, at para. 51. The factors considered in the exercise of this discretion include:
1. The nature of the previous convictions.
2. The remoteness of the previous convictions to the present charge.
3. The similarity of the previous convictions to the present charge.
4. Whether there was a deliberate attack on the credibility of a Crown witness; especially if there is a credibility contest between the accused and that witness based on their character.
[7] These factors, while not exhaustive, have been the most important ones in determining a Corbett application: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 177; R. v. McManus, 2017 ONCA 188, 36 C.R. (7th) 261, at para. 82; R. v. Laing, 2016 ONCA 184, at para. 20. Deference is afforded to trial judges’ determinations of Corbett applications. Appellate intervention is only warranted when the trial judge’s Corbett decision demonstrates an error in principle, misapprehension of the material facts, or was an unreasonable exercise of discretion: R. v. Asante, 2022 ONCA 657, at para. 21, citing R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304.
[8] Credibility is the key consideration when deciding the probative value of past convictions on a Corbett application: “[t]he probative value of a prior conviction in a Corbett application is always rooted in the strength of the inference that can be drawn from the fact of the conviction to the testifying accused's credibility”: King, at para. 180. The prejudice involved is the obvious one: the jury may well consider the general propensity revealed by the criminal record as evidence that the accused is more likely to have committed the offence they are charged with.
[9] Convictions for offences such as acts of deceit, fraud, cheating, theft, and disrespect for the administration of justice have been considered particularly informative of a witness’s honesty: King, at para. 140. On the other hand, certain types of convictions have been considered less relevant to credibility. For example, in R. v. Wilson (2006), 2006 CanLII 20840 (ON CA), 39 C.R. (6th) 345 (Ont. C.A.), at para. 33, the Court of Appeal held that drug convictions are of little probative value on the issue of credibility. La Forest J., in his dissent in Corbett, at para. 155, said that acts of violence generally have little or no direct bearing on honesty and veracity. However, even where convictions are disconnected from crimes of dishonesty, they may have the potential to demonstrate a lack of trustworthiness on the part of the witness by showing an “abiding and repeated contempt for laws”: King, at para. 140, citing Corbett.
[10] In general, the Corbett analysis is the same whether the records are youth records or adult records; the question remains whether the prejudicial effect of a conviction outweighs its probative value: Morris v. The Queen, 1978 CanLII 168 (SCC), [1979] 1 S.C.R. 405. Yet, added complexity is involved when it comes to youth records. Amongst other principles, the YCJA is premised on the principle that young persons have diminished moral blameworthiness or culpability: s. 3(1)(b) of the YCJA; R. v. D.B., 2008 SCC 25. Consequently, youth convictions for an offence are not necessarily the moral equivalent as adult convictions for the same offence. This may have an impact on the probative value of youth convictions on credibility: R. v. Hall, 2011 ONSC 6526, at para. 14; R. v. Hussein, 2023 ONCA 253, at para. 66; Nicola J. Langille, Forgetting Youth: The Use of Prior Youth Records to Impugn Credibility, 2014 72-1 University of Toronto Faculty of Law Review 10, 2014 CanLIIDocs 33741. At times, courts have deleted youth records or convictions when the accused has a similar adult record because the existence of adult convictions would avoid leaving the jury with a skewed or incomplete picture of their credibility: Hall; R. v. Barreira, 2017 ONSC 2478, at para. 27; R. v. Champagne, 2024 ONSC 1437, at para. 24. In other cases, youth convictions remained untouched though an adult record also existed: Asante, at paras. 23-25.
[11] I turn now to how anti-Black racism can be considered as a factor in a Corbett application.
B. ANTI-BLACK RACISM CONSIDERATIONS ON A CORBETT APPLICATION
R. v. King: Setting the stage for considerations of systemic racism in the Corbett analysis.
[12] The seminal case of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 offered early guidance to courts on how the racial background of an accused should affect sentencing, per section 718.2(e) of the Criminal Code. In that case, a 19-year-old Cree woman named Jamie Tanis Gladue was convicted of manslaughter after killing her common-law husband. Cory and Iacobucci JJ. writing for a unanimous Supreme Court of Canada, explained that the intent of s. 718.2(e) is to alleviate Indigenous overincarceration and to adopt the principle of restorative justice. At para. 68, the court recognized that “the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.” As such, the s. 718.2(e) analysis must focus on the unique circumstances of Indigenous peoples in Canada, including systemic factors that may have assisted in bringing the Indigenous accused before the courts.
[13] Relatively recently, the principles set out in Gladue in the sentencing context were made applicable to Corbett applications.
[14] In King, at paras. 132-202, the Court of Appeal for Ontario held that trial judges can apply Gladue principles in their determination of a Corbett application for an Indigenous accused. The accused in that case, a young Indigenous man, was charged with second-degree murder. The trial judge, Goodman J., excluded King’s prior assault convictions, accepting defence counsel’s submission that the respondent’s Indigeneity impacted the probative value and prejudicial effect of the prior convictions: R. v. King, 2019 ONSC 6851. At para. 41, Goodman J. spelled out the need to extend Gladue principles beyond the sentencing context: “Sentencing innovation, by itself, will not deal with the underlying causes of crimes committed by Indigenous people nor with the problem of over-incarceration. More must be done.”
[15] The Court of Appeal upheld Goodman J.’s decision on the Corbett application, finding that an accused's Indigeneity is a relevant, although not dispositive, factor to consider. The concern for trial fairness, underlying the Corbett analysis, requires trial judges to pay particular attention in the analysis to the unique circumstances of an Indigenous accused, where those circumstances affect the probative value and prejudicial impact of their criminal record. Several of the Corbett factors required further specification to put the judge into an adequate position to accurately assess the prejudice and probative value of admitting past convictions. This can be done as a separate step or within the confines of the existing traditional Corbett factors. The court concluded in upholding the trial judge’s ruling, that the accused’s Indigeneity, placed in its proper context and considered alongside the other traditional Corbett factors, weighed in favour of numerous convictions being excluded.
[16] The post-King case law continues to consider Gladue principles in the Corbett analysis for Indigenous accused persons: see, for example, R. v. Hikoalok, 2023 ONSC 406, and R. v. Young, 2023 BCSC 276, [2023] B.C.J. No. 347. However, to my knowledge, no trial judge has ventured to extend the court’s reasoning in King to other racialized accused persons.
[17] In my view, the reasoning from King makes this extension to Black accused ripe and very much called-for. What I propose is not a simple application of Gladue to Black Canadians, which Rosenberg J.A. declined to do in R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.), but rather an extension of the reasoning in King as it pertains to accused who are subject to the adverse effects of systemic racism more generally. This doesn’t presuppose that the racism experienced by Indigenous peoples and Black Canadians are comparable. As I previously observed in R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, at para. 57, “the voices of each community deserve to be heard on their own individual terms.” What it does presuppose is that racism’s roots, both historical and current, based in privilege and dominance, are comparable across cases and may call for similar safeguards among differently racialized accused. To address it similarly across cases of differently racialized accused merely recognizes the common source of racial inequity in the criminal justice system and society at large, without diminishing the varied experiences of different racialized groups. This recognition should imbue the concept of trial fairness for other racialized accused that suffer from systemic racism as much as it does for Indigenous accused.
[18] The Court of Appeal in King is clear that the purpose of considering Gladue principles in a Corbett analysis is to advance trial fairness by ensuring oft-overlooked factors, like systemic racism, are accounted for (at para. 175):
[L]ike in the sentencing context, taking into account the realities facing Indigenous people, including the consequences of overt and systemic racism, does not necessarily direct a different result on Corbett applications. The application of the Gladue principles in this context is not intended as a vehicle to redress broad social problems or to remedy past disadvantage … Rather, 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.
[19] The Crown submitted that it is unnecessary to do this for a Black accused like I.T. because of the general instructions about bias and prejudice given to the jury panel and petite jury, and the challenge for cause on the grounds of race. I do not agree. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R.579, existing procedural safeguards against juror bias are not a panacea. Corbett itself is a recognition that jury instructions will not always be sufficient to guard against improper propensity reasoning. Trial fairness demands that all factors bearing on the statutory presumption of admission be considered. It is imperative that the Corbett analysis direct trial judges to consider whether in the context before them, the accused is at elevated risk of prejudice because of racist stereotypes: King, at para. 196. I am satisfied that this need to guard against improper propensity reasoning applies not only to cases of Indigenous accused, but to all cases involving Black accused.
Applying anti-Black racism to Corbett: Guidance from R. v. Morris
[20] In my view, cases that consider anti-Black racism in sentencing, such as Borde, R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.), and, most cogently, R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, can be extended for use in the Corbett analysis in a way that mirrors the Court of Appeal’s reasoning in King and widens its scope to Black accused in Canada.
[21] It is not a novel idea that social principles considered in sentencing need not be limited to the sentencing context. Courts have held that Gladue principles are not strictly limited to sentencing hearings and ought to be considered by all decision makers who have the power to influence the treatment of Indigenous offenders in the justice system. As aptly summarized by King at para. 170:
“As can be seen, the term "Gladue principles" has thus become a short form way of adverting to the idea that those involved in the criminal justice system, particularly judges exercising discretionary power, ought to be aware of the realities of the Indigenous people appearing before them. By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in "lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably. We can put it no better than Moldaver J. in Barton, at para. 199: "when it comes to truth and reconciliation from a criminal justice perspective, much-needed work remains to be done".
[22] It reasonably follows that Morris principles ought not be strictly limited to sentencing decisions and should be considered by all decisionmakers who have the power to influence the treatment of Black people in the justice system. It is worth noting here, though not applied as directly or as often as Gladue principles to the exercise of judicial discretion, Morris principles have been utilized in legal contexts other than sentencing: R. v. Theriault, 2021 ONCA 517, at paras. 141-146 (the assessment of the credibility of a Black witness based upon the racial and social context of a witness’s background including a distrust for law enforcement); R. v. Ali, 2024 ONSC 5208, at para. 157 (anti-Black racism heightening the prejudicial effect of the admission of rap music); R. v. Morgan, 2023 ONSC 6855, at para. 70 (anti-Black racism intersecting with the assessment of police racial profiling); R. v. Aim et al, 2023 ONSC 5909, at para. 40 (race-based fear of police providing an alternative explanation for post-offence conduct); R. v. E.B., 2020 ONSC 4383, at paras. 26, 40-44 (application in a bail decision).[2]
[23] The Court of Appeal held in Morris at para. 13 that “[c]ourts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender”. The court cited a report, “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, by Professor Owusu-Bempah, Professor James, and Ms. Sibblis, which explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. The court urged those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders, to “read and re-read this report” (at para. 43). That report concluded:
It is our opinion that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic. Elevated levels of offending in the types of crimes that typically come to the attention of the police (street crimes as opposed to white-collar and corporate crimes), combined with discrimination in the justice system itself have resulted in the gross over-representation of Black Canadians in our provincial and federal correctional systems. Whereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged and serve to guide judicial decision making.
[24] The report discusses how young Black men in particular are discriminated against in the criminal justice system: “[y]oung Black Canadians are not only over-represented in stop, search and carding practices of local police, but they serve longer periods of time in pre-trial detention, resulting in longer periods of incarceration than are others charged with the same or similar crimes”: R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, at para. 22. According to the report, Black youths’ experiences with the criminal justice system led to an “inescapable” conclusion that young Black Canadians who view the system as unjust are less likely to believe they should abide by that system’s rules.
[25] While Morris dealt with sentencing and the present case deals with a Corbett application, I am prepared to find that similar factors relating to anti-Black racism can appropriately be considered in both. Both cases deal with ensuring judicial fairness in light of systemic racism. By considering anti-Black racism in I.T.’s Corbett application, I am striving to improve trial fairness by considering all factors bearing on the admissibility of his past convictions. To make it abundantly clear though, this in no way diminishes the traditional four Corbett factors nor does it demand a favourable result for a Black accused.
[26] In sum, I am satisfied that King and Morris make it possible—if not imperative—for me to consider Canada’s historical and continued presence of anti-Black racism in my Corbett analysis of I.T.’s past criminal record. While I realize the novelty of this addition to the Corbett analysis, I am satisfied that the case law, social science literature, and the fair and impartial administration of justice compels me to take this step.
The application of the King principles to a Black accused.
[27] In applying the Corbett analysis to Black accused, the following principles can be gleaned from King:
• In the assessment of the probative value of the convictions, one must place the Black accused’s criminal record within the context in which it has been accumulated in order to correct for possible systemic biases, stereotypes, and assumptions. Doing so might detract from the strength of the credibility inference that can be taken. A conviction that stems in part from circumstances of disadvantage including systemic racism rather than a subjective contempt for the law or truthfulness may lesson its probative value (at paras. 179-180, 189).[3]
• Evidence of a causal link between the conviction and overt or systemic racism is not required. However, there must be some evidence to support that systemic or background factors are “tied in some way” to the accused and the conviction (at paras. 182-184).
• In calibrating the danger of prejudicial propensity reasoning based upon past convictions, note must be taken of the fact that Black persons are objects of racism both outside and inside the criminal justice system which may prevent jurors from fairly and accurately assessing the credibility of Black accused. This is so despite procedural safeguards such as jury cautions and race-based challenges for cause (at para. 194).
[28] Those are the principles at play. As an aside, in keeping with the above conclusion that Gladue considerations cannot be simply transposed to other racialized groups, I find that the record is inadequate to adopt what King held with respect to convictions of Indigenous accused obtained as a result of a guilty plea. For Indigenous accused, convictions secured by guilty pleas must be placed in the context of the attitudes of Indigenous persons shaped by systemic racism in the criminal justice system (at paras. 190-191). Said differently, Indigenous accused overwhelmingly plead guilty suggesting that, for Indigenous people, a conviction arising from a guilty plea may be less probative of credibility because of their belief that they will not receive a fair trial due to the racist nature of the criminal justice system. For Black accused, I do not have the social context evidence to support a similar conclusion.
