Friday, January 20, 2017

Criminal record cannot be used to explain behaviour of accused

R. v. Marini, 2017 ONCA 46 is an interesting example of how not to use a criminal record:

[19]        Essentially, the trial judge reasoned that, if the appellant were truly innocent and was in fact in the wrong place at the wrong time, his decision to remain was undermined by his "criminal past and life experiences" (i.e., his criminal record). In other words, if innocent, someone with the appellant's criminal record ought to have fled the scene. 

[20]        As acknowledged by the trial judge in his reasons, the appellant's criminal record could not be used as evidence of the appellant's propensity to commit the offences with which he was charged. The trial judge could simply have used the appellant's extensive criminal record, which included many entries for breaking and entering, in assessing his credibility and relied on it to reject his evidence. This use is permissible under s. 12(1) of the Canada Evidence Act, R.S.C., 1985, C-5 (CEA). In our opinion, however, the trial judge's use of the appellant's criminal record went well beyond the limited use permitted by the CEA. We are not persuaded that references made by the appellant in his evidence about his criminal past and having been to prison mitigated this error.

Of the Law Societies of Upper Canada and Nunavut 

1 comment:

Ernest Guiste said...

Bravo ! This is exactly what paragraph 14 of the Notice of Hearing prepared by Presenting Counsel against JP Massiah alleged and which the Hearing Panel chaired by now retired Justice Livingstone based liability on and later removed JP Massiah from office. In paragraph 211 the learned panel wrote:

"In light of the nature of the conduct set out above, the range of women who were recipients of the conduct of His Worship Massiah that has been proved on a balance of probabilities, and his HISTORY OF JUDICIAL MISCONDUCT OF A SIMILAR NATURE AT A DIFFERENT COURTHOUSE, HIS CONDUCT DEMONSTRATES A PATTERN OF INAPPROPRIATE CONDUCT TOWARD WOMEN IN THE JUSTICE SYSTEM.