Monday, May 14, 2012

Corbett applications not to mislead by omission

R. v. Charbonneau, 2012 ONCA 314 is an interesting decision because it makes clear that where a Corbett application is granted it is not to mislead the jury as to the true nature of the accused but only to minimize any prejudicial reasoning:


[27]         The appellant had multiple entries for assault and other offences in his criminal record. However, the trial judge noted that deleting reference to the 1992 convictions from his records would suggest that there was a significant period in which the appellant “lived a law-abiding life in the community” when, in reality, he was serving a penitentiary sentence. As well, the trial judge noted, the sentences he received for the 1992 convictions were significantly longer than any other sentence he has received. In her words, allowing cross-examination on these convictions would allow the jury to “fairly gauge just how hardened a criminal they consider [the appellant] to be, and what impact his criminal record has on their assessment of his credibility.”

[28]         Throughout her reasons on the Corbett application, the trial judge properly focused on the need to weigh the probative value of the evidence to the jury’s assessment of the appellant’s credibility against the prejudicial effect of its inclusion.

[29]         Moreover, it was appropriate for the trial judge to “sanitize” the appellant’s record by requiring the sexual assaults from 1992 to be described only as assaults: R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51. Doing so reduced any potential prejudice to the appellant.



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