R. v. McManus, 2017 ONCA 188
[81] Pursuant to s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, a witness may be questioned as to whether he or she has been convicted of a criminal offence. Typically, the relevance of such evidence is in respect of the witness’s credibility, and the evidence cannot be used as bad character evidence or for propensity reasoning. Under Corbett, a court can be asked to exclude parts of a criminal record where its probative value is outweighed by its prejudicial effect. As the court noted in Corbett, a jury is presumed to follow the court’s instructions about the proper use of evidence of prior convictions: Corbett, at p. 690. The right to a fair trial is the context in which the balancing exercise must be effected: R. v. Saroya (1994), 1994 CanLII 955 (ON CA), 36 C.R. (4th) 253 (Ont. C.A.), at para. 5.
[82] The question in each case is whether excision of the conviction in question would leave the jury with incomplete and therefore incorrect information about an accused’s credibility as a witness. Relevant factors include: the nature of the previous conviction; its remoteness or nearness to the present charge; and the similarity to the offence charged: Corbett, at pp. 740-744. Another potential factor identified in Corbett is the need to maintain a balance between the position of the accused and that of a Crown witness who has been subjected to a credibility attack on the basis of his or her criminal record or otherwise, although this factor should not override the concern for a fair trial: Corbett, at pp. 742-744. Any attack on the integrity of a Crown witness is not sufficient to make the accused’s entire record admissible; rather, what is contemplated is an attack on the Crown witness’s credibility based on his or her character, especially as disclosed in his or her criminal record: R. v. Brown (2002), 2002 CanLII 41937 (ON CA), 166 C.C.C. (3d) 570 (Ont. C.A.), at para. 24. See also R. v. Bomberry, 2010 ONCA 542, 78 C.R. (6th) 191, at para. 50.
[83] In R. v. Brand (1995), 1995 CanLII 1540 (ON CA), 98 C.C.C. (3d) 477 (Ont. C.A.), this court held that a trial judge erred by rejecting the Corbett application of an accused charged with trafficking cocaine who sought to exclude three prior convictions for trafficking in narcotics. This court noted that the three drug convictions had no probative value with respect to the accused’s credibility but were highly prejudicial. See also R. v. Wilson (2006), 2006 CanLII 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 33.
[84] 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 failed to give reasons.
Aucun commentaire:
Publier un commentaire