2003BCSC0400

Before: The Honourable Mr. Justice Meiklem

Oral Reasons on Admissibility of Cross-Examination on Criminal Record

February 14, 2003

Counsel for the Crown:	W.J. Hilderman
Counsel for Defendant:	R. Bruneau
Place of Trial:	Williams Lake, BC

[1] THE COURT: The Crown's case is based largely on the reliability of the confession of the accused to undercover officers posing as a criminal organization. The accused has now applied at the close of the Crown's case for a ruling on the admissibility of cross-examination on portions of his criminal record in the event that he testifies. He intends to testify that he was untruthful to the officers and that he did not commit the offence charged, which is first degree murder committed in the course of a sexual assault or attempted sexual assault. He would also testify that the details of his false confession were obtained from publicly available information and information that the police provided to him.

[2] The only testimonial credibility clash in this case will be between the accused's trial testimony and his confession.

[3] The accused's application pertains firstly to a cluster of eight convictions on September 19th, 1990 for various sexual assault and weapons offences. These are convictions that most concern the accused for the purposes of this application, because they clearly involve substantially the same type of conduct that underlies the offence charged, they are relatively contemporaneous, and are therefore likely to give rise to the prejudice of inviting forbidden reasoning incorporating propensity. It is argued that this prejudicial effect, added to the evidence of bad character that the jury has already, of necessity, heard in the narrative of the undercover operation will be impossible to dispel with instructions.

[4] The other convictions that the accused seeks to have excluded, ranked in the order of their significance, are a rape conviction in 1970 for which he received five years, and two 1990 convictions for assault under s. 266, drawing suspended sentences. Along with the rape conviction, his record notes a re-committal as a parole violator in June 1972.

[5] Mr. Bruneau argues that these prior convictions are not for offences involving dishonesty and they have little probative value on the question of credibility.

[6] Crown counsel points out that in R. v. Corbett, the previous conviction for murder was admitted, notwithstanding that the charge was murder, on the basis that the prejudicial effect could be overridden by proper instruction to the jury. He points out that the jury have already learned that the accused has a criminal record, and knowledge of the true ingredients may be preferable to leaving them to speculate as to those ingredients.

[7] Crown counsel also referred me to R. v. Gibson, in our Court of Appeal, where, following a trial for second degree murder, the trial judge was upheld in holding that the prejudice arising from the fact of a record of 16 convictions over 54 months, including convictions for assault, robbery, possession of narcotics, and several youth court convictions, could be adequately dealt with by a thorough charge. The probative value identified by the trial judge was:

The fact that taken as a whole, his criminal record evidence is a mode of life which bears disadvantageously upon his trustworthiness as a witness. His abiding and repeated contempt for the law is manifest in his persistent involvement in serious crimes.

[8] Defence counsel in the Gibson case had argued at trial and on appeal, as defence counsel argues here, that a jury instruction would be overwhelmed by the number of convictions and the forbidden, but still logical, inference of guilt from propensity.

[9] The other principle applied by the trial judge in R. v. Gibson in the passage quoted with approval in the Court of Appeal decision is that the absence of an attack on the credibility of the Crown witnesses does not displace the usual rule that s. 12 of the Canada Evidence Act applies. I take that as acknowledged; Mr. Bruneau did not suggest that his application was bound to succeed simply on the basis that this case was devoid of an attack on the credibility of the Crown witnesses.

[10] Crown counsel also cited R. v. Charland, where a two-thirds majority of the Alberta Court of Appeal upheld the trial court decision allowing cross-examination on an entire record which included two prior convictions for a sexual assault, in a case where the charges included sexual assault and causing bodily harm in the course of a sexual assault. The Supreme Court of Canada agreed with the majority of the Alberta Court of Appeal. The trial judge's reasoning concluding that probative value outweighed the prejudicial effect was not extensively set out, it would appear, but the Court of Appeal's reasoning on the probative value question was stated as follows (page 313 of the Canadian Criminal Cases Report):

Generally, previous convictions for violent offences such as sexual assault do not directly reflect on honesty and truthfulness, and depending on the circumstances of the case, have limited probative value in assessing credibility. However, particularly in the context of a lengthy criminal record, such prior convictions have probative value that is greater than trifling, because a jury could reasonably conclude that the convictions reflect a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie. Here, excluding the sexual assault convictions from the cross-examination, could leave the jury with an erroneous impression that the accused had not been convicted of any offences since 1988. The accused would have appeared to have lived a 'crime free' life in the community for six years, when a substantial portion of that time was spent in jail. In the circumstances of this case, I cannot say that the trial judge's finding that the probative value of the accused's prior sexual assault convictions outweigh the prejudicial effect constituted a clear or palpable error.

[11] Charland, incidentally, was also a case where the court considered that there “was not a particularly serious attack on credibility” of the Crown witnesses. The Alberta Court of Appeal noted that the majority of the Supreme Court of Canada in Corbett believed that juries can be trusted to follow instructions, use evidence for limited permissible purposes and not be influenced by that evidence when considering other issues, and that the Supreme Court of Canada in the cases of R. v. D.(L.E.) and R. v. B.(F.F.) exhibited the same confidence in the ability of a jury to comply with the trial judge's instructions.

[12] In R. v. Leland, Davies J. of this court dealt with a case where, on a murder charge, the accused applied to preclude any reference to a lengthy criminal record including convictions for armed robbery, breaking and entering, theft, assault, false pretences and personation, possession of a narcotic for the purposes of trafficking, uttering threats, and dangerous operation of a motor vehicle. The case was very similar to this one in that the Crown's case turned on the reliability of statements to undercover officers, and the accused intended to testify and deny the truth of his admissions to the undercover officers.

[13] As Mr. Hilderman pointed out, the court dealt with the application in two separate parts. The court dismissed the application to preclude any reference to the record on the basis of the inclusionary policy of the Supreme Court of Canada in Corbett, and also on the basis that “concealing the evidence of his prior criminal record would deprive the jury of important information relevant to credibility and create a risk that a jury would be presented with a misleading picture”. However, the court went on to expunge individual convictions, including those for violent offences, on the basis that they had little, if any, probative value on the question of credibility. The court applied Charland in holding that the balance of the record showed:

continued convictions which could lead to the conclusion of the accused having a disregard for the laws of society, making it more likely that he is a person who harbours such attitudes, and would therefore lie.

[14] Leland usefully summarizes the four main factors to be considered on this type of application, as set out by Mr. Justice La Forest in Corbett, which are drawn largely from Martin J.A. in R. v. Brown, (1978) 38 C.C.C. (2d) 339:

1. The nature of the previous conviction,

2. Similarity of the previous conviction to the charge at hand,

3. The remoteness or nearness of the previous conviction,

4. Fairness of exclusion to the prosecution.

(Incidentally, I agree with Mr. Bruneau that in a case such as this, where the testimony at trial is some 13 years after the alleged offence, the nearness in time factor generally pertains to the nearness to the trial rather than to the offence charged. We, of course, have to bear in mind that the issue is not only the reliability of Mr. Baker's trial testimony, but also his January 2002 admissions.)

[15] In light of the Supreme Court of Canada approving of the decision of the Alberta Court of Appeal in Charland, I think a fifth main factor must be considered to have joined the others on the list, namely:

5. The effect of exclusion on the probative value for credibility purposes of the record as a whole.

[16] Returning to the specific convictions included in this application, I find that I agree with Mr. Bruneau that there is a very high risk of prejudice in respect of the cluster of sexual assault and weapons convictions on September 19th, 1990. There is a low probative value arising from these offence types on the question of general credibility. I do not think a limiting instruction can be expected to reduce the prejudicial effect so as to assure a fair trial in respect of these convictions, due to their very strong similarity to the offence charged. The absence of an attack on the credibility of the Crown witnesses means that the fairness to the Crown factor is not in play. The exclusion of these from the admissible record does not leave a misleading gap affecting the probative value of the record as a whole, if the 1990 assault convictions are not expunged.

[17] I therefore rule that the Crown shall not cross-examine on the eight offences in that group.

[18] In respect of the two s. 266 assault convictions in 1990, they are of an offence type that is not independently very probative on the question of honesty, but the risk of prejudice is relatively low and, in my view manageable with an instruction as to the proper use being limited to forming part of the record, the entirety of which can be used only to assist in assessing credibility. Expunging these convictions would seriously affect the probative value for credibility purposes of the record as a whole. I rule against the accused's application in respect of the two assault convictions.

[19] One of the consequences of editing the record to the point where it does not truly portray the accused's regard for the laws and rules of society is that the Crown will naturally be deterred from inquiry under s. 12 of the Canada Evidence Act. In the circumstances of the case at bar, this might well increase the risk of prejudice to the accused because, although I have already warned the jury about the forbidden reasoning based on propensity and will do so again, the jury are aware that Mr. Baker has spent a meaningful length of time in jail and, as pointed out by Mr. Hilderman, their speculation may well exceed the reality. They will be instructed that Mr. Baker's bad conduct and criminal behaviour is relevant on the question of credibility. In light of Mr. Baker's age and his manner of speaking to the undercover officers about being in "the joint", together with the dogged persistence of these undercover operators notwithstanding the lack of apparent progress, if there was no reference to the record, the jury may infer that he was previously convicted of a much more serious offence or offences than is the case, perhaps even speculating that the record includes a homicide.

[20] Turning to the 1970 rape conviction and the 1972 parole violation, with these considerations in mind, it is clear that expunging reference to these would greatly diminish the probative value, for credibility purposes, of the record as a whole. That would make it appear, falsely and misleadingly, that from 1961 to 1990 Mr. Baker lived an unblemished life. There is no question that there is a risk of prejudice that the jury must be warned against, but as a necessary part of the continuum of the record this conviction and the parole violation have significant probative value. If they were expunged and the record was still dealt with, the fact of editing would be obvious, because the only other conviction drawing a custodial sentence would be the 1990 failure to comply with a recognizance, which drew a sentence of 30 days. This would leave the jury seriously misled. An example of one logical consequence of that which would be unfair to the Crown is that Mr. Baker's several truthful references to being in the joint and his attitude towards "rats" would then appear to the jury to have been fictitious.

[21] I conclude in respect of the 1970 rape conviction that the accused has not established that the risk of prejudice, if addressed with a proper instruction, outweighs the probative value on the question of credibility.

[22] I will conclude by simply reminding counsel that my ruling on excluding the September 19th, 1990 convictions is subject to being revisited and modified if there is evidence adduced by Mr. Baker that would, if disclosed, have materially altered the balancing of probative value against prejudicial effect in respect of those convictions.

(EXERPT CONCLUDED)

“I.C. Meiklem, J.”
The Honourable Mr. Justice I.C. Meiklem

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March 13, 2003