R. v. Corbett

R. v. Corbett
Collection
Supreme Court Judgments
Date
1988-05-26
Report
[1988] 1 SCR 670
Case number
19220
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
British Columbia
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 19220
Decision Content
r. v. corbett, [1988] 1 S.C.R. 670
Lawrence Wilburn Corbett Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec and the Attorney General for Alberta Interveners
indexed as: r. v. corbett
File No.: 19220.
1987: March 2, 3; 1988: May 26.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Le Dain and La Forest JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Fair trial ‑‑ Examination of accused as to previous convictions ‑‑ Accused charged with murder ‑‑ Previous conviction of a similar nature to offence charged admitted into evidence ‑‑ Whether s. 12(1) of the Canada Evidence Act inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms .
Evidence ‑‑ Witnesses ‑‑ Credibility ‑‑ Examination of accused as to previous convictions ‑‑ Accused charged with murder ‑‑ Previous conviction of a similar nature to offence charged admitted into evidence ‑‑ Whether trial judge had discretion to exclude prejudicial evidence of previous conviction ‑‑ Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 12(1).
In January 1983, the accused was charged with first degree murder in respect of the death of one of his associates in the drug trade. At trial, credibility was a crucial issue. The accused denied any involvement in the killing and attacked the credibility of the Crown's witnesses who identified him as the killer. He elected to testify and his counsel sought to prevent the Crown from cross‑examining the accused on his previous record under s. 12(1) of the Canada Evidence Act . This section provides that a witness, which includes an accused where he chooses to testify, may be questioned as to whether he has been convicted of any offence. Counsel contended that to permit cross‑examination and proof of the accused's previous convictions, in particular a previous conviction of non‑capital murder, was so highly prejudicial that it would infringe on his Charter right to a fair trial. The trial judge rejected the argument. To minimize the adverse effect of a cross‑examination as to his criminal record, the accused admitted in his examination‑in‑chief that he had been convicted in 1954 of armed robbery, escaping custody, theft and breaking and entering, and in 1971 of non‑capital murder. In his charge, the trial judge warned the jury not to use the criminal record of the accused for any purpose other than credibility. The accused was found guilty of second degree murder and the Court of Appeal dismissed his appeal from conviction. This appeal is to determine whether the accused was deprived of his right to a fair hearing guaranteed by s. 11 (d) of the Canadian Charter of Rights and Freedoms by reason of the introduction of evidence of his earlier conviction for non‑capital murder.
Held (La Forest J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Beetz and Lamer JJ.: Section 12 of the Canada Evidence Act does not violate the guarantee contained in s. 11 (d) of the Charter . The effect of s. 12 is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused.
Section 12 also does not deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused. There is perhaps a risk that the jury may use the evidence of prior convictions for an improper purpose, but to conceal the prior criminal record of an accused who testifies would deprive the jury of information relevant to credibility, and create a much more serious risk that the jury will be presented with a misleading picture. The best way to balance and alleviate these risks is, as in this case, 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. To protect the accused, the trial judge may also exercise his discretion to exclude evidence of prior convictions in those unusual cases where a mechanical application of s. 12 would undermine the right to a fair trial. Further, the limitations on the use of prior convictions demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of prejudicing an accused's trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question.
Although the trial judge has a discretion to exclude evidence of prior convictions in an appropriate case, such discretion should not be exercised in favour of the accused in the present circumstances. The accused made a deliberate attack on the credibility of the Crown witnesses, largely based upon their prior record. The issue for the jury was solely that of credibility. Had the accused's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. Admitting the accused's convictions except that for non‑capital murder would not have avoided the imbalance between the Crown and the accused. The jury would have been misled rather than aided by the exclusion of that evidence, and in these circumstances, it cannot be said that such admission was unfairly prejudicial.
Per McIntyre and Le Dain JJ.: Whatever discretion may have existed to permit a trial judge to exclude admissible evidence at common law, on no basis of authority or principle can such a discretion have empowered a court to exclude questions to a witness as to past convictions in the face of the clear words of s. 12(1) of the Canada Evidence Act , a legislative provision specifically found not to be inconsistent with s. 11 (d) of the Charter . To admit of such a discretion would be tantamount to holding that Parliament could not by clear legislative enactment alter the common law.
Per Beetz J.: Section 12(1) of the Canada Evidence Act would not conform with ss. 7 and 11 (d) of the Charter unless it be construed as leaving room for the trial judge's discretion to disallow the cross‑examination of an accused as to prior convictions if the convictions are of tenuous probative value in assessing credibility and their disclosure would be highly prejudicial to the accused.
Per La Forest J. (dissenting): Evidence of previous convictions is relevant to the credibility of an accused who testifies and is prima facie admissible. But the admission into evidence of an accused's previous convictions harbours the potential to prejudice profoundly the fairness of his trial. To prevent such prejudice, the trial judge has a judicial discretion to exclude prejudicial evidence of previous convictions in an appropriate case. This discretion, which exists at common law, subsists under s. 12 of the Canada Evidence Act . In assessing the probative value or potential prejudice of evidence of previous convictions, the trial judge should take into consideration, among the most important factors, the nature of the previous conviction and its remoteness or nearness to the present charge. In particular, a court should be very chary of admitting evidence of a previous conviction for a similar crime. The more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission.
In the present case, the trial judge erred in failing to recognize the existence of the exclusionary discretion and, consequently, in admitting into evidence the previous conviction for non‑capital murder. The introduction of this evidence was, in the circumstances of the case, unjustifiably prejudicial to the fairness of the accused's trial. It is self‑evident that the prejudicial potential harboured by the admission at a trial for murder of a previous conviction for non‑capital murder was manifestly profound. Furthermore, the probative value of this item of evidence in relation to credibility was, at best, trifling. Although the accused had assailed the credibility of Crown witnesses and that credibility was the vital issue at trial, the evidence of the other previous convictions of the accused, the violation of his parole conditions, his involvement in drug transactions, amply served the purpose of impeaching the accused's credibility. The previous conviction for non‑capital murder added very little, if anything, to the jury's perception of the accused's character for veracity.
Section 12 of the Canada Evidence Act , when read in conjunction with the salutary common law discretion to exclude prejudicial evidence, does not violate an accused's right to a fair trial nor deprive him of his liberty except in accordance with the principles of fundamental justice. It is true that s. 11 of the Charter constitutionalizes the right of an accused and not that of the state to a fair trial before an impartial tribunal. But "fairness" implies and demands consideration also of the interests of the state as representing the public. Likewise the principles of fundamental justice operate to protect the integrity of the system itself, recognizing the legitimate interests not only of the accused but also of the accuser. The recognition of a discretion to exclude evidence when its probative value is overshadowed by prejudicial effect ensures that the legitimate interests of both the public and the accused are taken into account. The factors that should be considered in exercising this discretion ensure that this occurs. The recognition and proper exercise of this discretion, therefore, ensures that s. 12 is constitutionally valid.
Cases Cited
By Dickson C.J.
Not followed: R. v. Stratton (1978), 42 C.C.C. (2d) 449; referred to: R. v. D'Aoust (1902), 5 C.C.C. 407; R. v. Brown (1978), 38 C.C.C. (2d) 339; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; Koufis v. The King, [1941] S.C.R. 481; R. v. Fushtor (1946), 85 C.C.C. 283; R. v. Bodnarchuk (1949), 94 C.C.C. 279; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424; Corbett v. The Queen, [1975] 2 S.C.R. 275; State v. Duke, 123 A.2d 745 (1956); State v. Ruzicka, 570 P.2d 1208 (1977); R. v. Grosse (1983), 9 C.C.C. (3d) 465; R. v. Kulba (1986), 27 C.C.C. (3d) 349; R. v. Jarosz (1982), 3 C.R.R. 333; Schmidt v. The King, [1945] S.C.R. 438; R. v. Rudd (1948), 32 Cr. App. R. 138; R. v. Lane and Ross (1969), 6 C.R.N.S. 273; Deacon v. The King, [1947] S.C.R. 531; R. v. Mannion, [1986] 2 S.C.R. 272; State v. Anderson, 641 P.2d 728 (1982); R. v. Laurier (1983), 1 O.A.C. 128; R. v. Geddes (1979), 52 C.C.C. (2d) 230; R. v. Waite (1980), 57 C.C.C. (2d) 34; R. v. MacDonald (1939), 72 C.C.C. 182; R. v. Butterwasser, [1948] 1 K.B. 4; R. v. Danson (1982), 66 C.C.C. (2d) 369.
By McIntyre J.
Referred to: R. v. Wray, [1971] S.C.R. 272; R. v. Stratton (1978), 42 C.C.C. (2d) 449.
By La Forest J. (dissenting)
R. v. Stratton (1978), 42 C.C.C. (2d) 449; R. v. Wray, [1971] S.C.R. 272; R. v. Jarosz (1982), 3 C.R.R. 333; R. v. Grosse (1983), 9 C.C.C. (3d) 465; R. v. Kulba (1986), 27 C.C.C. (3d) 349; Maxwell v. Director of Public Prosecutions, [1935] A.C. 309; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Brown (1978), 38 C.C.C. (2d) 339; R. v. D'Aoust (1902), 5 C.C.C. 407; R. v. Fushtor (1946), 85 C.C.C. 283; R. v. Powell (1977), 37 C.C.C. (2d) 117; R. v. Skehan (1978), 39 C.C.C. (2d) 196; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; State v. Anderson, 641 P.2d 728 (1982); R. v. Lane and Ross (1969), 6 C.R.N.S. 273; Luck v. United States, 348 F.2d 763 (1965); Selvey v. Director of Public Prosecutions, [1970] A.C. 304; R. v. Sang, [1980] A.C. 402; R. v. Tretter (1974), 18 C.C.C. (2d) 82; R. v. Leforte (1961), 131 C.C.C. 169; Morris v. The Queen, [1979] 1 S.C.R. 405; Kuruma v. The Queen, [1955] A.C. 197; Noor Mohamed v. The King, [1949] A.C. 182; Harris v. Director of Public Prosecutions, [1952] A.C. 694; Gordon v. United States, 383 F.2d 936 (1967); R. v. Watts (1983), 77 Cr. App. R. 126; R. v. Powell (1985), 82 Cr. App. R. 165; R. v. Burke (1985), 82 Cr. App. R. 156; R. v. Jenkins (1945), 31 Cr. App. R. 1; R. v. Cook (1959), 43 Cr. App. R. 138; United States v. Brown, 409 F. Supp. 890 (1976).
Statutes and Regulations Cited
Act for amending the Law of Evidence and Practice on Criminal Trials (U.K.), 28 & 29 Vict., c. 18, s. 6.
Act for amending the Law of Evidence in certain Cases (U.K.), 9 Geo. 4, c. 32, s. 4.
Act for improving the Law of Evidence (U.K.), 6 & 7 Vict., c. 85, s. 1.
Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law, S.C. 1869, c. 29, s. 65.
Canada Evidence Act , 1893, S.C. 1893, c. 31, s. 4.
Canada Evidence Act, R.S.C. 1906, c. 145, s. 12.
Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 12 .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), (f), 24(1) .
Common Law Procedure Act, 1854 (U.K.), 17 & 18 Vict., c. 125, s. 25.
Criminal Code , 1892, S.C. 1892, c. 29, s. 695.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 613(2)(b), 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18], 643.
Criminal Evidence Act, 1898 (U.K.), 61 & 62 Vict., c. 36, s. 1(f).
Authors Cited
Canada. Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswells, 1982.
Canada. Law Reform Commission: Law of Evidence Project. Evidence. Ottawa: Law Reform Commission, 1972.
Doob, Anthony N. and Hershi M. Kirshenbaum. "Some Empirical Evidence on the Effect of s. 12 of the Canada Evidence Act Upon an Accused" (1972‑73), 15 Crim. L.Q. 88.
Friedland, M. L. "Criminal Law ‑‑ Evidence ‑‑ Cross‑Examination on Previous Convictions in Canada ‑‑ Section 12 of the Canada Evidence Act " (1969), 47 Can. Bar Rev. 656.
Holdsworth, Sir William. A History of English Law, vol. I, 7th ed. London: Methuen & Co., 1956.
Lawson, Robert G. "Credibility and Character: A Different Look at an Interminable Problem" (1975), 50 Notre Dame Lawyer 758.
McCormick, Charles T. Evidence, 2nd ed. By Edward W. Clearly. St‑Paul, Minn.: West Publishing Co., 1972.
Ratushny, Edward. Self‑Incrimination in the Canadian Criminal Process. Toronto: Carswells, 1979.
Saltzburg, Stephen A. and Kenneth R. Redden. Federal Rules of Evidence Manual, 4th ed. Charlottesville, Va.: Michie Co., 1986.
Schiff, Stanley A. Evidence in the Litigation Process, vol. 1, 2nd ed. Toronto: Carswells, 1983.
Teed, Eric. "The Effect of s. 12 of the Canada Evidence Act upon an Accused" (1970‑71), 13 Crim. L.Q. 70.
Weinberg, M. S. "The Judicial Discretion to Exclude Relevant Evidence" (1975), 21 McGill L.J. 1.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 1A. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.
Wissler, Roselle L. and Michael J. Saks. "On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt" (1985), 9 Law and Human Behavior 37.
Wright, Cecil A. "Evidence ‑‑ Credibility of Witness ‑‑ Cross‑Examination as to Previous Conviction" (1940), 18 Can. Bar Rev. 808.
APPEAL from a judgment of the British Columbia Court of Appeal (1984), 17 C.C.C. (3d) 129, 13 C.R.R. 250, 43 C.R. (3d) 193, dismissing the accused's appeal from his conviction of second degree murder. Appeal dismissed, La Forest J. dissenting.
Kenneth G. Young and Rosemary L. Nash, for the appellant.
John E. Hall, Q.C., and Sharon E. Kenny, for the respondent.
S. R. Fainstein and D. J. Avison, for the inter­vener the Attorney General of Canada.
Howard F. Morton and Michael A. MacDonald, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. The Chief Justice‑‑
I
2. The appellant, Lawrence Wilburn Corbett, was charged with the first degree murder of Réal Pinsonneault at the city of Vancouver. He was convicted of second degree murder and sentenced to life imprisonment with an order that he serve twenty years before being eligible for parole. He appealed to the British Columbia Court of Appeal and his appeal was dismissed, Hutcheon J.A. dissenting: (1984), 17 C.C.C. (3d) 129. Corbett now appeals to this Court as of right pursuant to s. 618(1) (a) of the Criminal Code on the following ground, which formed the basis of Hutcheon J.A.'s dissent:
Whether or not, by reason of the provisions of the "Charter of Rights ", Section 11 (d), the provisions of the Canada Evidence Act, Section 12 have any application whatever to an accused person with a prior conviction for murder who gives evidence at his trial on a charge of murder.
3. Section 11 (d) of the Canadian Charter of Rights and Freedoms and s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E‑10, read as follows:
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
12. (1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.
(2) The conviction may be proved by producing
(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if for an offence punishable upon summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if upon indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.
4. The issue is whether Corbett was deprived of his right to a fair hearing by reason of the introduction of evidence of his earlier conviction for non‑capital murder.
II
The Constitutional Questions
5. The following two constitutional questions were set for determination in this appeal:
1. Whether section 12(1) of the Canada Evidence Act is inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms to the extent that s. 12(1) applies to a person charged with an offence?
2. If there is such an inconsistency, does s. 1 of the Canadian Charter of Rights and Freedoms save s. 12(1) of the Canada Evidence Act from being declared of no force and effect to the extent of the inconsistency?
6. The Attorneys General of Canada, Alberta, Ontario and Quebec intervened to support the constitutional validity of s. 12(1) .
7. In his reasons, which I have had the advantage of reading, my colleague, La Forest J. finds that apart from the Charter , a trial judge has a discretion to refuse to permit cross‑examination of an accused on his prior criminal record, and that in the present case, the trial judge should have exercised his discretion in favour of the accused Corbett. This conclusion being sufficient to dispose of the appeal, it became unnecessary for La Forest J. to deal with the Charter issue in depth. I agree with La Forest J. that there is a discretion to exclude evidence of prior convictions of an accused. However, as I take a different view as to the manner in which the trial judge's discretion should have been exercised, it will be necessary for me to deal with the constitutional validity of s. 12 of the Canada Evidence Act .
III
Facts
8. Corbett was charged with the first‑degree murder of Réal Pinsonneault, who was shot and killed in Vancouver on December 2, 1982. Corbett and Pinsonneault were involved in the cocaine trade. Corbett was financing Pinsonneault in the purchase of illegal drugs. At the time of the killing, Pinsonneault owed Corbett $27,000. Corbett travelled from Victoria to Vancouver on December 1, 1982, the day before the murder, with a female companion, Colleen Allan. At the time, he was on parole from a life sentence imposed in 1971 after his conviction on a charge of non‑capital murder, upheld by this Court: Corbett v. The Queen, [1975] 2 S.C.R. 275. One of the conditions of his parole was that he had to stay within a 25‑mile radius of the city of Victoria unless he had permission to leave the area. He had no such permission. The purpose of Corbett's trip to Vancouver was to collect the money Pinsonneault owed him. Corbett and Allan registered in the Sands Motor Hotel under the assumed name of "Baxter". Corbett testified that the reason for using an assumed name was that his trip to Vancouver constituted a violation of his parole conditions.
9. Pinsonneault shared an apartment with Michèle Marcoux (also known as Smith) and Gilles Bergeron, a few blocks away from the Sands Motor Hotel. On the evening of December 1, 1982, Corbett and Allan had dinner at the hotel and after much drinking, a prolonged argument ensued in their hotel room. The hotel clerk called at 12:30 a.m. to complain about the noise. An occupant in the next room of the hotel testified that he heard Corbett leaving the room and that he heard Allan try to persuade Corbett to return. He then heard Allan make a telephone call asking the other party if she could come over.
10. The following facts are taken from the judgment of Craig J.A. (at p. 139):
Marcoux and Bergeron testified that about 1:30 a.m. on December 2, 1982, Allan whom they knew from their association with Corbett, came to their apartment. Allan had an injury or cut near one of her eyes. A few minutes later, Corbett arrived. Pinsonneault let him into the apartment. After saying something to Allan, Corbett told Pinsonneault and Bergeron to sit down. When Pinsonneault protested, Corbett took out a gun and fired several shots, killing Pinsonneault instantly and wounding Bergeron. Marcoux escaped from the apartment.
11. Colleen Allan was not called by the Crown at the trial but was presented for cross‑examination only. She had sworn at the preliminary hearing that neither she nor Corbett had left the hotel on the night in question. At the trial, however, she admitted that many of the statements she had made at the preliminary hearing, including that she had not seen the shooting of Pinsonneault, were untrue.
12. Bergeron had a serious criminal record. Marcoux also had a criminal record, although less serious than that of Bergeron. In the stories they gave to the police shortly after the shooting of Pinsonneault, neither Bergeron nor Marcoux identified Corbett as Pinsonneault's killer. At trial, Corbett's counsel forcefully cross‑examined both witnesses, whom he later described in his address to the jury as "unmitigated liars". Both witnesses admitted their criminal records during examination‑in‑chief by Crown counsel.
13. Before calling any evidence, Corbett's counsel sought a ruling that if the accused were called, s. 12 of the Canada Evidence Act would not apply to him because of s. 11 (d) of the Charter and therefore that Corbett could not be cross‑examined as to his prior criminal record. The trial judge ruled against Corbett on this issue, following the decision of the British Columbia Supreme Court in R. v. Jarosz (1982), 3 C.R.R. 333. The accused was then called and in order "to soften the blow" his own counsel put to him his criminal record which Corbett admitted. The record is as follows:
April 23, 1954 ‑‑ armed robbery, receiving stolen property, breaking and entering and theft (four counts)
May 12, 1954 ‑‑ escaping custody
December 6, 1954 ‑‑ theft of auto and breaking and entering
November 8, 1971 ‑‑ non‑capital murder
14. In his evidence, Corbett denied shooting Pinsonneault and swore that he only left his hotel room once during the night to get some liquor and cigarettes from his car, the hotel clerk having testified that he had let Corbett back into the hotel at 3:10 a.m.
15. In charging the jury, the trial judge stated as follows with regard to the relevance of Corbett's criminal record:
There was evidence tendered by the Accused that he was previously convicted of a number of Criminal Code offences, including the offence of non‑capital murder, which conviction was registered on November 8, 1971. Evidence of previous convictions is admissible only in respect to the credibility of the witness. It can only be used to assess the credibility of the Accused and for no other purpose. Because the Accused was previously convicted of murder, it must not be used by you, the Jury, as evidence to prove that the Accused person committed the murder of which he stands charged. You, the Jury, must not take the person's previous convictions into account in your deliberations when determining whether the Crown has proven beyond a reasonable doubt that the Accused committed the murder with which he is charged.
This warning could hardly have been more explicit. Then, later in his direction, the trial judge reiterated his earlier instruction:
Once again, Mr. Foreman and Members of the jury, I tell you that that type of evidence only goes to credibility, that is his previous criminal record.
The trial judge returned to the matter a third time and stated as follows:
I have already told you that you must not use the criminal record of the Accused for any purpose other than credibility. You must not, under any circumstances, come to the conclusion that, because he has a criminal record, he would be more inclined or predisposed to commit this particular offence.
16. The case clearly turned on credibility and on whether the jury believed Bergeron and Marcoux or the accused. After deliberating for some 27 hours, the jury returned a verdict of guilty of second degree murder.
IV
British Columbia Court of Appeal
17. Before the British Columbia Court of Appeal, the appellant relied on three grounds: the trial judge erred (i) in failing to hold that s. 12(1) of the Canada Evidence Act contravenes ss. 7 and 11 (d) of the Charter ; (ii) in failing to direct the jury properly on the theory of the defence and in failing to relate the evidence of witnesses generally to the theory; and, (iii) in failing to grant the request of counsel for the appellant that the jury be polled after the verdict. Leave to appeal to this Court on the second ground was refused, and leave was not sought on the third ground. We are concerned only with the first ground, the only ground upon which there was a dissent in the Court of Appeal.
18. Craig J.A. delivered lengthy reasons in which he carefully reviewed the evidence and dealt with all three issues relied upon by the appellant. With reference to the Charter argument, Craig J.A. identified its thrust as being that the jury would improperly use evidence of prior convictions and that rather than use such evidence only in assessing the credibility of the accused as a witness, would draw the inference that the accused was the sort of person who was likely to have committed the offence in question. His Lordship rejected this argument and specifically disagreed, at p. 145,
with the suggestion that, generally, or invariably, the trier of fact uses evidence of previous convictions of the accused as evidence of his guilt of the crime charged, rather than using it solely to assess his credibility and with the suggestion that jurors, psychologically, are incapable of heeding the warning that they must use this evidence solely on the issue of credibility.
19. Craig J.A. observed that in many cases, juries do acquit despite the existence of a prior record which indicates that jurors do heed the warning. He went on to observe that limiting the right of the Crown to examine the accused could create a serious imbalance in a case such as the present one where the accused had launched an attack on the credibility of Crown witnesses on the basis of their prior criminal records. Craig J.A. concluded as follows (at p. 146):
It would be unfair, particularly in a case such as this, to allow the case to go to the jury on the basis that the principal Crown witnesses should not be believed because they have criminal records, but that the accused should be believed because he does not, apparently, have a criminal record, although, in fact, he may have a criminal record.
20. Seaton J.A. concurred with Craig J.A. Seaton J.A. considered at length American decisions which establish that an accused who testifies on his own behalf in a criminal case assumes the position of an ordinary witness and is subject to being discredited on cross‑examination as to prior convictions. Seaton J.A. also reviewed the English legislation which permits such cross‑examination in certain circumstances, and noted that in the light of defence counsel's cross‑examination of Crown witnesses, Crown counsel would have been justified in cross‑examining the accused on his record under the English provision. Seaton J.A. concluded that the accused was not, in those circumstances, entitled to conceal his record from the jury.
21. Hutcheon J.A., dissenting, emphasized the difference between the situation in Canada and England, namely, that under the English legislation and practice, use of prior convictions is limited and a trial judge has a discretion to refuse to permit such cross‑examination where there is a serious risk that introduction of prior convictions would prejudice the jury against the accused. Hutcheon J.A. noted that the weight of authority in Canada was against the existence of any such discretion. He also noted that s. 12 had been criticized in the literature and concluded with respect to the various articles and studies as follows (at p. 161): "To the extent the matter has been studied, one can say that evidence of a previous conviction for the same offence unduly prejudices an accused and that the instruction from the trial judge does nothing to remove that prejudice." Hutcheon J.A. contended that the probative value of a prior murder conviction in relation to credibility was minimal whereas it created a substantial risk of undue prejudice. In the end, he concluded that the result produced by s. 12 was inconsistent with the accused's right to a fair hearing and that while it was impossible to deny that there was a strong case against the accused, his conviction for the same offence "might have been the last ounce which turned the scales against him."
V
Purpose and Effect of the Canada Evidence Act, s. 12
22. The history of the Canada Evidence Act, s. 12 and its predecessors is set out in La Forest J.'s reasons and in the judgment of Martin J.A. in R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.) Cross‑examination of an accused with respect to prior convictions has been permitted in Canada since an accused first became competent to testify on his own behalf in 1893: R. v. D'Aoust (1902), 5 C.C.C. 407 (Ont. C.A.) What lies behind s. 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility.
23. This rationale for s. 12 has been explicit in the case law. See, e.g., R. v. Stratton, supra, at p. 461, per Martin J.A., "Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness."
24. Similarly, in R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342, per Martin J.A., "The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness."
25. An American court identified the rationale behind a similar rule in the following language:
What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, "he takes his character with him . . . ." Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving "dishonesty and false statement."
(State v. Duke, 123 A.2d 745 (N.H. 1956), at p. 746; quoted with approval in State v. Ruzicka, 570 P.2d 1208 (Wash. 1977), at p. 1212).
Charter of Rights and Freedoms
26. It is contended, however, that permitting the Crown to cross‑examine an accused on his prior criminal record violates the right guaranteed by the Charter , s. 11 (d):
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
27. It should be noted at the outset that, strictly speaking, the accused's prior criminal record did not come before the jury as a result of being cross‑examined pursuant to s. 12 of the Canada Evidence Act . Counsel for the accused chose to introduce the record in examination‑in‑chief in order "to soften the blow". In my view, La Forest J. is correct in holding that this should not preclude the accused from challenging the validity of s. 12 . Counsel for the accused only elected to lead evidence of the accused's prior record after the trial judge had rejected his application for a ruling that the accused's criminal record could not be introduced by the prosecution in cross‑examination. Faced with the choice between introducing the record himself or having it exposed, as it inevitably would have been, by Crown counsel, counsel for the accused decided that his client's interests would be better served if he himself presented the potentially damaging evidence. While this was held fatal to any recourse under the Charter to challenge s. 12 in R. v. Grosse (1983), 9 C.C.C. (3d) 465 (N.S.S.C. App. Div.), it should not, in my view, prevent the accused from presenting the Charter argument. But for s. 12 , the prior criminal record of the accused would not have been put before the jury. The accused should not be deprived of the right to challenge the constitutional validity of the provision simply because of his attempt to minimize the impact it would have.
28. Does section 12 of the Canada Evidence Act violate the guarantee contained in s. 11(d) of the Char­ter? Clearly section 12 creates no presumption of guilt nor does it deprive the accused of the right "to be presumed innocent until proven guilty". The effect of the section is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused. It remains, however, to consider whether it can be said that the effect of s. 12 is to deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused.
29. The essence of the Charter argument is that in light of the evidentiary rules restricting the admissibility of similar fact evidence and evidence relating to bad character, evidence of prior convictions against an accused person would ordinarily be inadmissible. Section 12 purports to make such evidence admissible on the issue of credibility only, but it is contended that the trier of fact will be incapable of restricting the use of such evidence to the issue of credibility. It is argued that permitting cross‑examination on prior convictions unfairly prejudices an accused in the sense that it presents the trier of fact with evidence, not otherwise admissible, which the trier of fact will inevitably take into account not only on the issue of credibility but also on the ultimate issue of guilt or innocence. It is argued that when presented with such information, the jury will inevitably tend to conclude that the accused is a person of bad character or a person who has a propensity to commit criminal offences and hence draw an inference it is not legally entitled to draw.
30. It is the case that apart from its relevance to credibility, evidence of prior convictions would be inadmissible unless it met one of the exceptions to the general exclusion of similar fact evidence. Such evidence does not constitute proof that the accused committed the offence for which he is now being tried: Makin v. Attorney‑General for New South Wales, [1894] A.C. 57, at p. 65; Koufis v. The King, [1941] S.C.R. 481; R. v. Stratton, supra, at p. 461. It is also well‑established that the trial judge is under a duty in cases where the accused has been cross‑examined as to prior convictions to instruct the jury as to the limited permissible use it can make of such evidence: R. v. Stratton, supra; R. v. Fushtor (1946), 85 C.C.C. 283 (Sask. C.A.); R. v. Bodnarchuk (1949), 94 C.C.C. 279 (Man. C.A.)
31. It is argued, however, that even if prior convictions do bear to some extent upon credibility, the jury simply cannot be trusted with the information as, even if a clear instruction is given, the jury cannot avoid falling into the error of convicting the accused on the basis that he is a person who has a propensity to offend. Such a conclusion would run counter to the well‑established exclusionary rules relating to similar fact evidence and evidence of bad character. The issue to be faced, therefore, is whether the risk that the jury will use the evidence of prior convictions for an improper purpose is so great that Parliament is not entitled to provide, as it has in s. 12 of the Canada Evidence Act , that a witness, specifically in this case an accu