General Principles

 

  • Section 12 of the Canada Evidence Act, allows the Crown to cross-examine accused persons on their criminal record if they choose to testify. However, a trial judge has the discretion to limit cross-examination on an accused’s criminal record in order to safeguard the accused’s right to a fair trial. The discretion to limit cross-examination arises if the probative value of the prior convictions is outweighed by their prejudicial effect: R v Laing, 2016 ONCA 184 at para 19

 

 

The Test

 

  • The following is a non-exhaustive list of factors that are to be considered in exercising the discretion to exclude evidence of an accused’s record: 

    • nature of the previous conviction(s);

    • the similarity of the previous conviction(s) and the offence(s) being prosecuted;

    • the remoteness or nearness in time of the previous conviction(s); and

    • the fairness of limiting cross-examination in cases in which the accused has attacked the credibility of a Crown witness and resolution of the case boils down to a credibility contest between the accused and that witness: R v Laing, 2016 ONCA 184 at para 20

  • The overriding question, hoever, is whether it is necessary to limit cross-examination on an accused's prior record in order to guarantee the accused's right to a fair trial: Laing at para 21

 

 

On Appeal

 

  • The decision of a trial judge to exclude or not exclude part of an accused’s criminal record is an exercise of judicial discretion.

  • On appeal, a trial judge's decision is granted substantial deference. The Court of Appeal will not interfere tn the absence of an error in principle or a misapprehension of relevant evidence: R v Grizzle, 2016 ONCA 190 at para 16; R v Crevier, 2015 ONCA 619 at para 124

 

 

Example at Trial

 

  • For an analysis of a corbett application in the context of the defence putting police character in issue and raising a third party suspect/propensity based defence, see R v Crevier, 2015 ONCA 619 at paras 115-126