Thursday, March 20, 2014

Putting character in issue is not a condition precedent to having a prior criminal record admitted

R. v. Lepine, 2013 NWTCA 8 is a source for the proposition that while putting character in issue is relevant to a Corbett application such is not a condition precedent to having a prior criminal record admitted. The Court holds:

[6]               The leading case is R v Corbett 1988 CanLII 80 (SCC), [1988] 1 SCR 670, 85 NR 81, 41 CCC (3d) 385 in which six judges took part. Dickson C.J.C. wrote a judgment in which two others concurred. LaForest J. dissented, but Dickson C.J.C. agreed (para 49) “with the discretion recognized by the reasons of LaForest J.”. That judge emphasized the established discretion of a trial judge to exclude evidence whose prejudicial effect outweighs its probative value. And he went on (at pp 435-438 CCC) to discuss several factors to consider when doing that weighing as to criminal record.

[7]               The trial judge’s written reasons about cross-examination identified the specific factors listed in Corbett, and then applied and weighed each of them. No one suggests that the trial judge made any error of law or principle in adopting and applying any of that, with one possible exception. The appellant’s counsel’s factum seems to suggest that an attack on the character of the complainant during the trial is necessary to admit the record, i.e. that absence of attack bars admission. The appellant argues the trial judge erred in this analysis.

[8]               That is not how we read Corbett. An attack on the complainant’s character is merely an additional or alternative factor suggesting admitting the record in a case where it might otherwise not be admitted. The existence or absence of such an attack is not an extra ground for denying admission. In any event, the trial judge correctly found that there had been no attack on the complainant’s character here.

No comments: