R. v. Corbett (1988), 85 N.R. 81 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Lawrence Wilburn Corbett (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec and Attorney General of Alberta (intervenors)
(No. 19220)
Indexed As: R. v. Corbett
Supreme Court of Canada
Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Le Dain and La Forest, JJ.
May 26, 1988.
Summary:
An accused charged with first degree murder was convicted of second degree murder following a jury trial. The accused, who had a previous murder conviction, wished to testify but did not want to be cross-examined under s. 12 (1) of the Canada Evidence Act on his prior convictions. The accused sought a ruling that s. 12(1) did not apply to him on the ground that it would deny him a “fair” trial as provided in s. 11(d) of the Charter of Rights and Freedoms. The trial judge ruled against the accused. The accused’s counsel then introduced the accused’s prior record, which the accused admitted, to “soften the blow” of having the Crown introduce it on cross-examination. The trial judge properly instructed the jury that the prior convictions were admissible only to assess the accused’s credibility. The accused appealed.
The British Columbia Court of Appeal, Hutcheon, J.A., dissenting, in a judgment reported (1984), 17 C.C.C.(3d) 129; 13 C.R.R. 250; 43 C.R.(3d) 193, dismissed the appeal. The accused appealed to the Supreme Court of Canada and the following two constitutional questions were set for determination: “1. Whether s. 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?” The Supreme Court of Canada held that s. 12(1) did not violate the accused’s right to a fair trial under s. 11(d) of the Charter. Dickson, C.J.C., Lamer, Beetz and La Forest, JJ., held that apart from the Charter a trial judge retained a discretion to exclude evidence of prior convictions where a mechanical application of s. 12 would prejudice an accused’s right to a fair trial. McIntyre and Le Dain, JJ., dissenting on this point, held that no such discretion existed. La Forest, J., dissenting in the result of the appeal, held that the trial judge should have exercised his discretion to exclude the evidence of prior convictions in this case because of its prejudicial effect.
Estey, J., did not participate in the judgment.
Civil Rights – Topic 3157
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to fair trial – An accused charged with murder wished to testify, but did not want his previous murder conviction disclosed to the jury – The accused claimed that s. 12(1) of the Canada Evidence Act, which permitted cross-examination as to prior convictions, would prejudice his right to a fair trial under s. 11 (d) of the Charter of Rights and Freedoms, because there was a risk that the jury, even if properly instructed to use the evidence only to assess credibility, would use it to infer guilt – The Supreme Court of Canada held that s. 12(1) did not deny the accused a fair trial – The court held that it was preferable to give the jury the information with clear directions as to its limited use – The court noted that aside from the Charter, the accused’s rights were adequately protected, because the trial judge retained a discretion to exclude evidence of prior convictions where a mechanical application of s. 12(1) would undermine the right to a fair trial.
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior convictions – [See Civil Rights – Topic 3157 above].
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior convictions – Section 12(1) of the Canada Evidence Act permitted cross-examination of an accused, who chose to testify, on his prior convictions – The Supreme Court of Canada stated that (1) the accused may be cross-examined only respecting the conviction itself and not on the conduct that led to the conviction; (2) the accused cannot be cross-examined on whether he testified on the prior occasion when convicted in order to show that the accused was not believed by the jury on that occasion; (3) the Crown was not entitled to go behind the convictions to cross-examine an accused as to discreditable conduct or association with disreputable individuals to attack his credibility; (4) unless the accused testifies, the Crown is not permitted to adduce evidence of prior convictions, even if the accused attacked the credibility of Crown witnesses; and (5) the accused may be cross-examined only as to “convictions”, and not where he has been found guilty but granted a conditional discharge – See paragraph 48.
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior convictions – Section 12(1) of the Canada Evidence Act provided that “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” – The Supreme Court of Canada held that apart from any question of whether s. 12(1) violates the Charter of Rights and Freedoms, the trial judge retains a discretion to exclude evidence of prior convictions where a mechanical application of s. 12(1) would undermine an accused’s right to a fair trial.
Evidence – Topic 1021
Relevant facts – Relevance and materiality – Admissibility – General – The Supreme Court of Canada stated that “basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever-increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion” – See paragraph 50.
Evidence – Topic 4735
Witnesses – Examination – Impeaching credit – Re previous convictions – General – [See Civil Rights – Topic 3157 above].
Cases Noticed:
R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 7].
R. v. Jarosz (1982), 3 C.R.R. 333 (B.C.S.C.), refd to. [para. 12].
R. v. Stratton (1978), 42 C.C.C.(2d) 449 (Ont. C.A.), refd to. [para. 21].
R. v. D’Aoust (1902), 5 C.C.C. 407 (Ont. C.A.), refd to. [para. 21].
R. v. Brown (1978), 38 C.C.C.(2d) 339 (Ont. C.A.), refd to. [para. 23].
State v. Duke (1956), 123 A.2d 745 (N.H.), refd to. [para. 24].
State v. Ruzicka (1977), 570 P.2d 1208 (Wash.), refd to. [para. 24].
R. v. Grosse (1983), 61 N.S.R.(2d) 54; 133 A.P.R. 54; 9 C.C.C.(3d) 465 (C.A.), refd to. [para. 26].
Makin v. Attorney General for New South Wales, [1894] A.C. 57, refd to. [para. 29].
Koufis v. The King, [1941] S.C.R. 481, refd to. [para. 29].
R. v. Fushtor (1946), 85 C.C.C. 283 (Sask. C.A.), refd to. [para. 29].
R. v. Bodnarchuk (1949), 94 C.C.C. 279 (Man. C.A.), refd to. [para. 29].
R. v. Kulba (1986), 39 Man.R.(2d) 113; 27 C.C.C.(3d) 349 (C.A.), refd to. [para. 32].
R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 36].
Schmidt v. The King, [1945] S.C.R. 438, refd to. [para. 45].
R. v. Rudd (1948), 32 Cr. App. R. 138 (C.C.A.), refd to. [para. 45].
R. v. Lane and Ross (1969), 6 C.R.N. S. 273 (Ont. H.C.), refd to. [para. 45].
Deacon v. The King, [1947] S.C.R. 531, refd to. [para. 46].
R. v. Mannion, [1986] 2 S.C.R. 272; 69 N.R. 189; 75 A.R. 16, refd to. [para. 46].
State v. Anderson (1982), 641 P.2d 728 (Wash. Ct. App.), refd to. [para. 47].
R. v. Laurier (1983), 1 O.A.C. 128, refd to. [para. 48].
R. v. Geddes (1979), 2 Man.R.(2d) 339; 52 C.C.C.(2d) 230 (C.A.), refd to. [para. 48].
R. v. Waite (1980), 42 N.S.R.(2d) 546; 77 A.P.R. 546; 57 C.C.C.(2d) 34 (C.A.), refd to. [para. 48].
R. v. MacDonald (1939), 72 C.C.C. 182 (Ont. C.A.), refd to. [para. 48].
R. v. Butterwasser, [1948] 1 K.B. 4 (C.C.A.), refd to. [para. 48].
R. v. Danson (1982), 66 C.C.C.(2d) 369 (Ont. C.A.), refd to. [para. 48].
R. v. Wray, [1971] S.C.R. 272, refd to. [para. 59].
Maxwell v. D.P.P., [1935] A.C. 309, refd to. [para. 93].
R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 100].
R. v. Powell (1977), 37 C.C.C.(2d) 117, refd to. [para. 119].
R. v. Skehan (1978), 39 C.C.C.(2d) 196, refd to. [para. 119].
D.P.P. v. Boardman, [1975] A.C. 421 (H.L.), refd to. [para. 123].
Luck v. U.S. (1965), 348 F. 2d 763, refd to. [para. 135].
Selvey v. Director of Public Prosecutions, [1970] A.C. 304 (H.L.), refd to. [para. 138].
R. v. Sang, [1980] A.C. 402, refd to. [para. 139].
R. v. Tretter (1974), 18 C.C.C.(2d) 82, refd to. [para. 142].
R. v. Leforte (1961), 131 C.C.C. 169, refd to. [para. 143].
R. v. Morris, [1979] 1 S.C.R. 405; 27 N.R. 313, refd to. [para. 144].
Kuruma v. The Queen, [1955] A.C. 197, refd to. [para. 147].
Noor Mohamed v. The King, [1949] A.C. 182 (P.C.), refd to. [para. 147].
Harris v. D.P.P., [1952] A.C. 694, refd to. [para. 151].
Gordon v. U.S. (1967), 383 F.2d 936, refd to. [para. 155].
R. v. Watts (1983), 77 Cr. App. R. 126 (C.C.A.), refd to. [para. 155].
R. v. Burke (1985), 82 Cr. App. R. 156 (C.C.A.), refd to. [para. 156].
R. v. Jenkins (1945), 31 Cr. App. R. 1 (C.C.A.), refd to. [para. 159].
R. v. Cook (1959), 43 Cr. App. R. 138 (C.C.A.), refd to. [para. 159].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 11(d).
Common Law Procedure Act (1854), 17 & 18 Vict., c. 125, sect. 25 [para. 105].
Criminal Evidence Act (1898), 61 & 62 Vict., c. 36, sect. 1 [para. 107].
Evidence Act, R.S.C. 1906, c. 145, sect. 12 [para. 106].
Evidence Act, R.S.C. 1970, c. E-10, sect. 12(1), sect. 12(2) [para. 2].
Evidence Act, S.C. 1893, c. 31, sect. 4 [para. 107].
Law of Evidence, An Act to Improve (1843), 6 & 7 Vict., c. 85, sect. 1 [para. 103].
Law of Evidence and Practice on Criminal Trials, An Act for Amending, 28 & 29 Vict., c. 18, sect. 6 [para. 105].
Law of Evidence in Certain Cases, An Act to Amend (1828), 9 Geo. 4, c. 32, sect. 4 [para. 103].
Procedure in Criminal Cases and other matters relating to Criminal Law, An Act Respecting, S.C. 1869, c. 29, sect. 65 [para. 106].
Authors and Works Noticed:
Canada, Federal/Provincial Task Force, Report on Uniform Rules of Evidence (1982), p. 345, para. 26.11 [para. 109].
Doob, A.N., and Kirshenbaum, H.M., Some Empirical Evidence on the Effect of s. 12 of the Canada Evidence Act Upon an Accused (1972-73), 15 Crim. L.Q. 88 [para. 111].
Federal Rules of Evidence Manual (4th Ed. 1986), p. 557 [para. 108].
Friedland, M.L., Criminal Law: Evidence: Cross-examination on Previous Convictions in Canada (1969), 47 Can. Bar Rev. 656, p. 660 [para. 104].
Holdsworth, William, History of English Law (7th Ed. 1956), vol. 1, p. 349 [para. 41].
Lawson, R.G., Credibility and Character: A Different Look at an Interminable Problem (1975), 50 Notre Dame Lawyer 758, pp. 783-789 [para. 111].
McCormick, C.T., Evidence (2nd Ed. 1972), pp. 436-437 [para. 112].
Ratushny, E., Self-Incrimination in the Canadian Criminal Process (1979), pp. 335 [para. 125]; 341 [paras. 131, 132].
Schiff, S.A., Evidence in the Litigation Process (2nd Ed. 1983), vol. 1, p. 544 [para. 111].
Teed, E., The Effect of s. 12 of the Canada Evidence Act upon an Accused (1970-71), 13 Crim. L.Q. 70, pp. 7576 [para. 127].
Weinberg, M.S., The Judicial Discretion to Exclude Relevant Evidence (1975), 21 McGill L.J. 1, pp. 25-26 [para. 148].
Wigmore, Evidence in Trials at Common Law (Chadbourn Rev. 1970), vol. 3A, s. 922, p. 726 [para. 105]; 926 [para. 109].
Wigmore, Evidence in Trials at Common Law (Tillers Rev. 1983), vol. 1A, s. 28, p. 969 [para. 110].
Wissler, R.L., and Saks, M.J., On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt (1985), 9 Law and Human Behavior 37 [para. 128].
Wright, C.A., Case Comment, Evidence: Credibility of Witness: – Cross-examination as to Previous Conviction (1940), 18 Can. Bar Rev. 808, p. 810 [para. 132].
Counsel:
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 Attorney General of Canada;
Howard F. Morton and Michael A. MacDonald, for the Attorney General for Ontario;
Jacques Gauvin, for the Attorney General of Quebec;
William Henkel, Q.C., for the Attorney General of Alberta.
Solicitors of Record:
Young & Co., Vancouver, British Columbia, for the appellant;
Ministry of the Attorney General, Vancouver, British Columbia, for the respondent;
Frank Iacobucci, Ottawa, Ontario, for the Attorney General of Canada;
Ministry of the Attorney General, Toronto, Ontario, for the Attorney General for Ontario;
Jacques Gauvin, Sainte-Foy, Quebec, for the Attorney General of Quebec;
Department of the Attorney General, Edmonton, Alberta, for the Attorney General of Alberta.
This appeal was heard on March 3 and 4, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Le Dain and La Forest, JJ., of the Supreme Court of Canada.
On May 26, 1988, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Dickson, C.J.C. (Lamer, J., concurring) – see paragraphs 1 to 53;
Beetz, J. – see paragraphs 54 to 56;
McIntyre, J. (Le Dain, J., concurring) – see paragraphs 57 to 60;
La Forest, J., dissenting – see paragraphs 61 to 173.
Estey, J., did not participate in the judgment.
