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Canadian Criminal Evidence/Credibility/Prior Criminal Record

< Canadian Criminal Evidence | Credibility

General Principles

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Under s. 12(1) of the Canada Evidence Act, any witness may be questioned on whether they have been convicted of prior offences. The evidence may go to credibility but not to bad character or propensity to commit crimes. It will also be limited where the prejudicial effect outweighs the probative value.

Section 12 of the Canada Criminal Evidence Act permits cross-examining any witness on the existence of a criminal record. Defence can cross-examine a crown witness on any details behind their criminal record. The only limitation is relevance to the case before the court.[1]

It is permissible to cross-examination on convictions under any federal legislation,[2], certain convictions under provincial legislation[3], and convictions under foreign legislation where it would constitute an offence in Canada.[4]

A jury may not use the conviction of a co-accused for the same charge as evidence towards guilt, rather it may only be used to assess the accuseds knowledge and intent.[5]

Accused's Record

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Except where the accused places his characater at issue, the Crown cannot cross examine the witness on the accused of the prior criminal record. The crown can ask the accused of the date and place of conviction; the offence convicted; the sentence imposed. [6]

The defence can seek to limit the use of the criminal record by way of a "Corbett Application".

  1. ↑ R. v. Davidson (1974) 20 CCC 2d 292 (ONCA) at p.443
    R. v. Gassyt and Markowitz (1998) 127 CCC (3d) 546 (ONCA) at 560
    R. v. Miller 1998 131 CCC 3d 141 (ONCA) at 147
    R. v. H(BJ) [2000] O.J. No.279 (ONCA) at para. 2
  2. ↑ R. v. Watkins, (1992), 70 C.C.C. (3d) 341 (ONCA)
  3. ↑ R. v. Green (1943) 79 CCC 227 (BCCA
  4. ↑ R. v. Stratton (1978), 21 O.R. (2d) 258 (Ont. C.A.)
  5. ↑ R v Garneau 2012 NSCA 41
  6. ↑ R. v. Vincent, [1998] O.J. No. 3666 (C.A.) at 16-17
    R. v. Menard (1996), 108 C.C.C. (3d) 424 (0nt.C.A.) at 435-436 affirmed (1998), 125 C.C.C. (3d) 416 (SCC) at 427-428, 433
    R. v. Bricker (1994), 90 C.C.C. (3d) 268 (Ont.C.A.) at 274-279
    R. v. Shortreed (1990), 54 C.C.C. (3d) 292 (Ont.C.A.) at pp. 305-307
    R. v. Furrant (1983), 4 C.C.C. (3d) 354 (SCC) at 368-369
    R. v. Laurier (1983), I O.A.C. 128 (0nt.C.A.) at p. 131
    R. v. Howard and Trudel (1983), 3 C.C.C. (3d) 399 (0nt.C.A.) at 417
    R. v. Lizotte (1980), 61 C.C.C. (2d) 423 (Que.C.A.) at 432-434
    R. v. Boyce (1975), 23 C.C.C. (2d) 16 (Ont.C.A.) at 35-37
    R. v. McLaughlin, (1974), 20 C.C.C. 59 (0nt.C.A.) at 60-61

Non-Accused's Record

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A non-accused witness may be cross-examined on the circumstances of an offence underlying a prior conviction.[1]

  1. ↑ R v Bugar, 2010 ABCA 318

Proving a Record

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If a witness denies their record, section 12(2) addresses the manner of proving it:

s.12...
How conviction proved
(2) A 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 it is for an offence punishable on 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 on indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.

R.S., 1985, c. C-5, s. 12; 1992, c. 47, s. 66.


– CEA

Corbett Application

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A Corbett application is an application made by the defence to exclude the use of certain convictions found on the accused's criminal record from being put to the accused on cross-examination.

The determination is based on balancing factors which include:[1]

  1. the nature of the conviction;
  2. remoteness in time from the case before the court;
  3. whether the case boils down to a credibility contest between the accused and another witness or witnesses;
  4. whether the accused's record – either its seriousness or its length – evinces a disrespect for society's rules and laws that suggest a person with such attitudes would not hesitate to lie under oath.

A criminal record is generally considered admissible.[2] The burden is upon the accused to establish the basis to edit any part of their record.[3]

There are a variety of cases that state contradictory principles concerning the use of the record. Certain cases state that a long criminal record could overwhelm a jury and so should be edited.[4] Some cases says that the only admissible convictions are those that demonstrate dishonesty or directly concern integrity are admissible.[5] While others state that a record of violence can show the accused's total disregard for life, which suggests lying would not be a challenge of his moral code.[6]

The judge has the right to "sanitize" the record, such as calling sexual assault an assault, where the record would otherwise be overly prejudicial.[7]

See also:

  1. ↑ R v Corbett [1988] 1 SCR 670, 1988 CanLII 80 (SCC)
  2. ↑ Corbett at 686: " 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, ... though the violations are not concerned solely with crimes involving 'dishonesty and false statement."
  3. ↑ R v Madrusan, 2005 BCCA 609
  4. ↑ R v Madrusan, 2005 BCCA 609
  5. ↑ R v Ceballo, [2008] OJ No 4931, 2008 CanLII 63565 (ONSC)
  6. ↑ R v Saroya 1994 CanLII 955 (ONCA)
  7. ↑ R v Batte 2000 CanLII 5750 (ONCA)

See Also

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