R. v. M.C., 2019 ONCA 502
[53] Section 12(1) of the CEA authorizes questioning of a witness about whether the witness has been convicted of any offence. The provision reflects a legislative judgment by Parliament that evidence of prior convictions is relevant to a witness' credibility; in other words, to the testimonial trustworthiness of the witness: Corbett, at p. 685 S.C.R., per Dickson C.J., and p. 720 S.C.R., per La Forest J. (dissenting); R. v. Brown, 1978 CanLII 2396 (ON CA), [1977] O.J. No. 1220, 38 C.C.C. (2d) 339 (C.A.), at p. 342 C.C.C.
[54] The rationale upon which s. 12(1) admits prior convictions in relation to credibility is that the character of the witness, evidenced by the prior conviction(s), is a relevant fact in assessing the testimonial reliability of the witness: Corbett, at pp. 685-86 S.C.R., citing R. v. Stratton (1978), 1978 CanLII 1644 (ON CA), 21 O.R. (2d) 258, [1978] O.J. No. 3536, 42 C.C.C. (2d) 449 (C.A.), at p. 461 C.C.C.
[55] Courts have been vigilant to circumscribe the extent to which the Crown may use prior convictions of an accused who testifies. Questioning is limited to the facts of the conviction, including the offence of which the accused was convicted; the date [page504] and place of the conviction; and the punishment imposed: Corbett, at pp. 696-97 S.C.R.; Stratton, at pp. 466-67 C.C.C.; R. v. Laurier, [1983] O.J. No. 195, 1 O.A.C. 128 (C.A.), at p. 130 O.A.C. The cross-examination cannot extend to the conduct on which the conviction was based, at least in cases where the accused has not put his or her character in issue, or to whether the accused testified at trial: Corbett, at pp. 696-97 S.C.R.; Stratton, at pp. 466-67 C.C.C.
[56] The weight to be assigned to prior convictions in assessing the trustworthiness of the accused as a witness is a variable, not a constant. For example, convictions of offences involving dishonesty or false statements have a greater bearing on whether an accused witness is likely to be truthful: Brown, at p. 342 C.C.C.; Corbett, at pp. 720-21 S.C.R., per La Forest J. (dissenting). Similarly, offences demonstrative of a disregard for court orders or the administration of justice: R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 54 O.R. (3d) 36, [2001] O.J. No. 1559, 154 C.C.C. (3d) 221 (C.A.), at para. 81, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 359; R. v. Thompson, 2000 CanLII 5746 (ON CA), [2000] O.J. No. 2270, 146 C.C.C. (3d) 128 (C.A.), at para. 31.
[57] In general terms, the probative value of prior convictions with respect to the testimonial trustworthiness of an accused witness varies with the nature and number of prior convictions and their proximity to the time when the accused witness is giving evidence: Corbett, at pp. 720-21 S.C.R., per La Forest J. (dissenting); Brown, at p. 342 C.C.C.
[58] A trial judge has a discretion to exclude evidence of previous convictions when the probative value of those convictions on the issue of testimonial trustworthiness is exceeded by their prejudicial effect. This discretion represents an exception to the general inclusionary rule, which follows from Parliament's legislative determination in enacting s. 12(1) of the CEA, that prior convictions are relevant to a witness' testimonial trustworthiness: Corbett, at p. 697 S.C.R., per Dickson C.J., and pp. 720-22, 739-40 S.C.R., per La Forest J. (dissenting).
[59] No closed list of factors informs the exercise of the exclusionary discretion for which Corbett provides. But some are acknowledged as relevant. The nature of the convictions. The proximity or remoteness of the convictions to the time of the testimony. Any similarity between the previous convictions and the offences charged. And potentially, the need to maintain a balance between the position of the accused and that of a Crown witness whose credibility has been impeached on the basis of prior convictions or otherwise: Corbett, at pp. 740-44 S.C.R., per La Forest J. (dissenting); Brown, at p. 342 C.C.C.; [page505] R. v. McManus, [2017] O.J. No. 1372, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.
[60] To invoke the exclusionary discretion in a jury trial, an accused applies at the conclusion of the case for the Crown for an order restricting the number of convictions on which the accused may be questioned should she or he testify: R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, [1997] S.C.J. No. 107, at paras. 7-9. In a trial without a jury, the need for such a formal application may be questionable: see R. v. A.B.,[2016] A.J. No. 1374, 2016 ABQB 733, at para. 33.
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