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PROOF OF CRIMINAL RECORD-CORBETT

R. v. Corbett, [1988] 1 S.C.R. 670  CL ii

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                  In January 1983, the accused was charged with first degree murder in respect of the death of one of his associates in the drug trade. At trial, credibility was a crucial issue. The accused denied any involvement in the killing and attacked the credibility of the Crown's witnesses who identified him as the killer. He elected to testify and his counsel sought to prevent the Crown from cross-examining the accused on his previous record under s. 12(1) of the Canada Evidence Act. This section provides that a witness, which includes an accused where he chooses to testify, may be questioned as to whether he has been convicted of any offence. Counsel contended that to permit cross-examination and proof of the accused's previous convictions, in particular a previous conviction of non-capital murder, was so highly prejudicial that it would infringe on his Charter right to a fair trial. The trial judge rejected the argument. To minimize the adverse effect of a cross-examination as to his criminal record, the accused admitted in his examination-in-chief that he had been convicted in 1954 of armed robbery, escaping custody, theft and breaking and entering, and in 1971 of non-capital murder. In his charge, the trial judge warned the jury not to use the criminal record of the accused for any purpose other than credibility. The accused was found guilty of second degree murder and the Court of Appeal dismissed his appeal from conviction. This appeal is to determine whether the accused was deprived of his right to a fair hearing guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms by reason of the introduction of evidence of his earlier conviction for non-capital murder.

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                 Per Dickson C.J. and Beetz and Lamer JJ.: Section 12 of the Canada Evidence Act does not violate the guarantee contained in s. 11(d) of the Charter. The effect of s. 12 is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused.

                  Section 12 also does not deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused. There is perhaps a risk that the jury may use the evidence of prior convictions for an improper purpose, but to conceal the prior criminal record of an accused who testifies would deprive the jury of information relevant to credibility, and create a much more serious risk that the jury will be presented with a misleading picture. The best way to balance and alleviate these risks is, as in this case, to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information.


To protect the accused, the trial judge may also exercise his discretion to exclude evidence of prior convictions in those unusual cases where a mechanical application of s. 12 would undermine the right to a fair trial. Further, the limitations on the use of prior convictions demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of prejudicing an accused's trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question.

                  Although the trial judge has a discretion to exclude evidence of prior convictions in an appropriate case, such discretion should not be exercised in favour of the accused in the present circumstances. The accused made a deliberate attack on the credibility of the Crown witnesses, largely based upon their prior record. The issue for the jury was solely that of credibility. Had the accused's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. Admitting the accused's convictions except that for non-capital murder would not have avoided the imbalance between the Crown and the accused. The jury would have been misled rather than aided by the exclusion of that evidence, and in these circumstances, it cannot be said that such admission was unfairly prejudicial

Jim O'Neil, LL.B.

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