Use of prior criminal record

R. v. Farrell, 2011 ONCA 572 deals with the proper use of a past criminal record. Except for use as similar act evidence a prior criminal record is only for use to test an accused's credibility. The Court holds:

[5]              The error in allowing cross-examination on the entire criminal record was compounded by the trial judge leaving it to the jury to use the appellant's criminal record not only for credibility but to decide whether it was the appellant or the victim who was the aggressor.  Where the Crown is permitted to cross-examine an accused under s. 12 of the Canada Evidence Act, the record goes only to the accused's credibility.  The jury is to be cautioned as to the limited use of the evidence.  As Dickson C.J. said in Corbett at p. 691.

 In my view, the best way to balance and alleviate these risks is 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. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.  [Emphasis added.]

[6]              The appellant's prior convictions and the facts underlying those convictions could only be admitted for a purpose other than to test his credibility if the trial judge found that the evidence met the test for similar fact evidence as enunciated by the Supreme Court of Canada in R. v. Handy, [2002] 2 S.C.R. 908.  Before the evidence could be admitted the trial judge would have had to determine whether the probative value of the evidence outweighed the serious prejudicial effect and in particular would have to consider the factors summarized at para. 82 of Handy.  That was not done in this case, and given the remoteness of the convictions and the different context in which they arose we have grave doubts that the evidence could have been admitted as similar fact evidence.