Le droit gouvernant une requête de type Corbett

Kirby c. R., 2023 QCCS 5119

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[10]        In R. v. Corbett[3], the Supreme Court of Canada recognized that trial judges have a discretion to allow cross-examination of an accused on his or her prior convictions[4].

[11]        It is accepted, as a general proposition, that a prior criminal record is relevant to credibility[5].

[12]        The probative value of the evidence of conviction must be assessed against its potential prejudice to the accused[6].

[13]        There is no presumption against the admissibility of the accused’s criminal record when he or she chooses to testify. To the contrary, the criminal record is accepted as being relevant to credibility and, in the usual case, cross-examination should be allowed. It is for the accused to show that the prejudice is such that to allow the cross-examination would undermine his or her right to a fair trial[7].

[14]        In the Law of Evidence, the authors summarized the factors advanced in Corbett to be considered by a trial judge in exercising his or her discretion:

1.   The nature of the previous conviction: a conviction for perjury or for fraud is far more telling about a person’s honesty and integrity than a conviction for assault. 2.   How similar the previous conviction is to the offence now charged: the concern here is with prejudice. Justice La Forest was of the view that “a court should be very chary of admitting evidence of a previous conviction for a similar crime”, since the similar crime can invite inadmissible propensity reasoning. 3.   The remoteness or nearness of the previous conviction: convictions occurring long before and not followed by subsequent convictions should generally be excluded. 4.   Fairness: where the accused attacks the credibility of the Crown witnesses and credibility is at issue, it would be unfair to insulate the accused from their own criminal past. To allow this would present a distorted view to the jury[8]. [References omitted]

[15]        In R. v. McManus[9], the Court of Appeal for Ontario stated the following:

[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.