Corbett Rulings

R. v. Bomberry, 2010 ONCA 542, released today, makes clear that a Corbett ruling, editing an accused criminal record, ought not to be based on fairness to Crown witnesses but rather solely on the credibility of the accused.  In making a Corbett ruling places limitations on the use of prior convictions so as to preserve the right of the accused to a fair trial.  The key is to ensure the use of prior convictions avoids the risk of prejudicing an accused's trial by introduction of evidence of prior misdeeds. The Court rules:

Issue #2 – The Corbett Ruling

[42]          The appellant argues that the trial judge erred in ruling that the Crown could cross-examine her on her criminal record – specifically, on her three convictions for assault causing bodily harm and her one conviction for assault. 

[43]          Prior to testifying, the appellant brought an application pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, requesting that the trial judge edit her record of criminal convictions for its use under s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5. 

[44]          The trial judge edited the record.  He removed all convictions prior to October 2000, which included two assault convictions.  He also removed a conviction for carrying a concealed weapon in 2004.  The record that remained included convictions for failing to comply with a probation order on two occasions, obstructing a police officer on two occasions, theft over $5,000, possession of goods obtained by crime under $5,000, possession of a scheduled substance, as well as the four assault convictions referred to above. 

[45]          In making his ruling, the trial judge noted that the Crown was “faced with an attack on the credibility of its witnesses”, in particular Detectives Turner and Aherns, as well as an attack on the character of Uiuiu.  In his brief reasons, the trial judge seemed to be concerned that it was necessary to admit the appellant’s record, as he edited it, so that the jury would not be misled into thinking that the Crown witnesses were disreputable and the appellant was of good character.  In other words, admitting the record in the edited form was necessary to ensure that there was not an imbalance in favour of the appellant. 

[46]          The trial judge seemed similarly concerned that because the appellant had brought out some evidence of Uiuiu’s bad character, it was necessary to allow the appellant’s assault convictions to be introduced so as to avoid unfairness in the way the jury would view him and the appellant. 

[47]          In my view, the trial judge erred in admitting the appellant’s record of convictions for the four assault charges.  Those convictions would not add anything to the jury’s analysis of the appellant’s credibility.  The balance of the appellant’s criminal record, as edited, together with the other evidence that had been admitted about her background and lifestyle, was more than enough to alert the jurors that they should exercise great caution in assessing the appellant’s credibility. 

[48]          Not only were the assault convictions unnecessary for the task of assessing the appellant’s credibility, but they were also potentially very prejudicial to her in terms of opening the door to propensity reasoning.  Those convictions were close in time to Uiuiu’s death and they portrayed the appellant as a person prone to violence.  While the trial judge gave the appropriate limiting instructions to the jury as to the use to be made of the appellant’s criminal record, including the assault convictions created an unnecessary risk that some jurors could use these convictions impermissibly. 

[49]          Moreover, if the trial judge had removed the assault convictions from the appellant’s record, there would not have been an unfair imbalance in favour of the appellant as compared to the Crown witnesses.  As I have noted above, there was plenty of other evidence admitted at trial, including the evidence of Detective Turner, to show that the appellant was not a person of good character.  There was no need to add the four assault convictions to what was already a strong body of evidence on this point.

[50]          In any event, the appellant’s trial counsel did not challenge the good character of any of the Crown witnesses, including Detectives Turner and Aherns.  Defence counsel only challenged the accuracy and reliability of the evidence of the Crown witnesses, not their good character.  There is a distinction.  Questioning witnesses’ accounts of events and challenging the accuracy of those accounts does not create the potential for the kind of imbalance discussed in Corbett:  R. v. W.B. (2000), 145 C.C.C. (3d) 498 at paras. 46-47.

[51]          For essentially the same reasons, I do not consider that it was necessary to admit the record of the four assault convictions so as to remove any imbalance that the jury may have perceived between the respective characters of the appellant and Uiuiu.

[52]          In summary, I am of the view that, in the context of all of the evidence admitted in this case, the trial judge erred in not excluding the four assault convictions from the appellant’s criminal record.