R v AB, 2016 ABQB 733

Court of Queen’s Bench of Alberta Citation: R v AB, 2016 ABQB 733 Date: 20161222 Docket: 151402898Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - AB Accused Restriction on Publication Discretionary ban – Because the accused has not yet decided whether he will testify in this trial, by analogy to the ban on bail reviews and preliminary inquiries, on its own motion, the court orders a publication ban on the identity of the accused and on any information that might tend to disclose his identity.

NOTE: This judgment is intended to comply with the restrictions set out above; it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] The accused, who is being prosecuted for sexual assault and related charges in a judge-alone trial, brings a Corbett application to exclude both dated, and recent violent, offences from inclusion in the trial evidence for purposes of cross-examination; he proposes that dishonesty-type offences from 2005 onward be the only offences on which the prosecutor could cross-examine. [ 2 ] The accused’s application is denied.

[3] Applications of this type must be approached from the premiss that the trier of fact should have all relevant informationbefore it, albeit with a limiting instruction. Nevertheless, a trial judge retains discretion to edit the accused’s criminal record in order toensure a fair trial.

That discretion should be exercised after taking into account all appropriate factors including: the nature of theprevious convictions, any similarity between the previous convictions and the offences being prosecuted, the nearness or remoteness intime of the previous convictions, and, whether the accused has challenged the credibility of a Crown witness. Here, the accused has noprevious conviction for sexual assault, although he does have convictions for violence. There is no similarity between the previousconvictions and the offences being prosecuted.

Although there is a considerable gap in the accused’s record that is probably due to thefact that he served a lengthy sentence for manslaughter. The accused has challenged the credibility of the complainant in part based onher character.

Finally, this is a judge alone trial in which the court has already been made aware of the accused’s convictions as a resultof the application; the trial judge’s potential limiting instruction to a jury is, therefore, already known to herself. [4] A discretionary publication ban is issued on the identity of the accused because it is not yet known whether the accused willtestify in his trial; unless he testifies, his criminal record will not become part of the trial evidence. [5] Although recent case law and ongoing sociological science may make it timely for an appeal-level court to review theprinciples which underlie Corbett, this court must assess the accused's application on the basis of existing law.

Cases and authority cited [6] By the accused/applicant: R v Corbett, (SCC), [1988] 1 S.C.R. 670; R v Neil, 2001 ABQB 766. [7] By the Crown/respondent: R v Lepine, 2013 NWTCA 8, affm’d 2014 SCC 65; R v Charland, 1996 CarswellAlta 757(C.A.), affm’d (SCC), [1997] 3 S.C.R. 1006; Watt’s Manual of Criminal Evidence,

article 20.05. [8] By the court: R v Sarrazin, 2011 SCC 54; R v Ahlstrom, [1990] B.C.J. No 1623; R v Klimek, [2000] S.J. No. 252; R vT.J.B., [2004] N.J. No. 114; R v Mayers, 2014 ONCA 474; R v N.A.P., [2002] O.J. No. 4829; R v Tremblay, 2006 QCCA 75; R vLaing, 2016 ONCA 184; R v Poole, 2015 BCCA 464; Lisa Dufraimont, Limited Admissibility and its Limitations, (2013) 46 UBC LRev241-287; Hannah Freeman, The Presumption of Jury Competence: Sarrazin's New Acknowledgment of Cognitive Biases and itsImplications for Counsel, (2013) 71:2 UT Fac L Rev 9 – 27. Appendix A: AB’s criminal record 1.

Publication ban [9] By analogy to a bail hearing or a preliminary inquiry, because it is not known at this stage of the proceedings if the accusedwill testify, on its own motion, this court issues a publication ban on the accused’s identity if the accused chooses not to testify. 2.

Background [10] The accused is being prosecuted on the following charges. sexual assault of X; assault causing bodily harm to X; unlawfulconfinement of X; and utter a death threat to X. [11] The accused’s criminal record is set out at Appendix A. [12] During the trial, the accused cross-examined the complainant about matters relating to her character: whether her children hadbeen apprehended, whether she had tried to make an invalid application for financial benefits from the Crimes Compensation Fund,whether she had routinely participated in the theft of meat from Safeway stores to sell the meat for drugs.

The complainant admitted toall of these behaviours. The cross-examination could not be described as forceful even though it was serious; many adjournments weretaken to accommodate the complainant. 3. General approach on a Corbett application [13] Doherty J.A. has, on at least two occasions, emphasized the general approach that should be taken on a Corbett analysis. InMayers, speaking for the court, he said: The Corbett Ruling 2 The appellant has an extensive criminal record. At trial, he sought to have most of that record redacted for the purpose of cross-examination.

On appeal, counsel focuses on two convictions for sexual assault that were entered about three or four years before theappellant's trial. 3 The trial judge has a recognized discretion to edit an accused's criminal record for the purpose of cross-examination.

This court mustdefer to a trial judge's decision in this regard absent error in principle, a misapprehension of material facts, or an exercise of the discretionwhich, in the totality of the circumstances, must be regarded as unreasonable. 4 In this case, the trial judge, motivated primarily by the forceful attack on the complainant's credibility and character, concluded thatthe convictions for sexual assault should not be edited, but should instead by the subject of a strong limiting instruction.

5 R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, the guiding authority, instructs, at paras. 35 and 50 that trial judgesshould begin from the premise that juries should receive all relevant information accompanied, where necessary, by a proper and clearlimiting instructions.

Corbett further instructs that the discretion to keep information about an accused's criminal record from the juryshould not be exercised absent clear grounds in policy or law for doing so. [14] At para. 20 of NAP , he used similar language: There is no presumption against the admissibility of the accused's criminal record where he or she chooses to testify. To the contrary, asindicated by the majority in R. v.

Corbett, supra, cross-examination on a criminal record of an accused who chooses to testify will be theusual course. [3] Doherty J.A.’s assessment of the situation was approved by the Quebec Court of Appeal: Tremblay at para. 22. [15] This court also adopts that approach. 4. Consideration of the Corbett factors [16] Although the general approach to a Corbett application is as set out above, the judge hearing such an application will weighthe non-exclusive factors outlined in Corbett, as well as any other pertinent factors with a view to ensuring that the accused has a fairtrial.

a) the nature of the previous convictions [17] Although the accused’s record includes some convictions for dishonesty-type offences, such as theft, which have an obviousconnection with credibility, most of his offences are either for crimes of violence or for failure to abide by court orders.

b) similarity of previous convictions with current charges [18] The accused has no convictions for sexual assault.

c) the remoteness or nearness in time of convictions [19] The accused’s record commences 30 years ago. There is a considerable gap in the accused’s record, but that is presumablydue, at least in part, to the fact that he was serving a sentence for manslaughter.

d) the accused’s challenge to the credibility and character of the complainant [20] The accused has cross-examined the complainant seriously on matters which relate to her credibility; in that context, he hasincluded questioning not only about matters which are obviously related to the complainant’s reliability, such as her drug use at thepertinent time, but also about matters that deal only with her character.

e) this is a judge-alone trial [21] If this were a jury trial, as the judge hearing the Corbett application, if I granted the application, I would issue as clear and asstrong a limiting instruction to the jury as I could. I have therefore already reviewed that area of the law.

f) overall assessment [22] In taking all of the Corbett factors into account, I have concluded that the entirety of the accused’s record should be availablefor cross-examination. If he testifies, the accused will be asking the court to accept his evidence. Although the accused’s record is not,mostly, for crimes of dishonesty, his record does demonstrate a failure to respect community standards of behaviour. That does speak tohis credibility; although the weight which this evidence should attract will obviously be the subject of submissions should the accusedchoose to testify.

In that event, I will, however, also remind myself that the bare record does not inform me, for example, whether theaccused has, generally, admitted to his crimes which might be a factor that should be taken into account in assessing his credibility. [23] The bare record does not indicate whether any of the assault crimes of which the accused has been convicted are potentiallyrelated to the current charge, for example, by consisting of assault charges of intimate partners.

Therefore, the accused’s convictions forassault are not directly prejudicial in relation to a charge of sexual assault, although they do, of course, speak to the accused that he hasfailed to respect the physical integrity of others.

Should the accused testify, I will, of course, remind myself that I should not speculate onwhat type of assault the accused has been convicted and that what is important in this trial is whether the Crown has proved, beyond areasonable doubt, that the accused sexually assaulted, and assaulted, this complainant on this occasion. [24] When assessed in its entirety, the accused’s record represents a consistent pattern of criminal behaviour over the entire 30 yearperiod. [25] It would be unfair to allow the accused’s cross-examination of the complainant on matters that relate solely to her characterwithout allowing the Crown to cross-examine the accused in a similar way. [26] As a judge sitting alone, I have now reviewed the accused’s entire record and I have now heard submissions refreshing myunderstanding of the way in which credibility should be assessed.

I would be in a position to formulate a clear and strong limitinginstruction to a jury; I am therefore in a position to similarly instruct myself should the accused choose to testify. [27] For the above reasons, I have concluded that the objective of trial fairness does not require me to remove from the trial the

normally admissible, and therefore probative, criminal record of the accused. I deny the accused’s Corbett application. 5. It is not useless to bring a Corbett application in a judge alone trial [28] There are not many examples of Corbett applications in judge alone trials. [29] In Ahlstrom, the trial judge who was sitting without a jury on a .08 charge allowed cross examination of the accused on aprior conviction for impaired driving. When that line of cross-examination was challenged, the following exchange took place: MR.

SCARISBRICK: Well, how does an impaired driving conviction relate to his credibility, Your Honour? THE COURT: Well, there's a habit of people having more than one impaired driving charge. MR. SCARISBRICK: Well, precisely. That's nothing to do with his credibility. That's his character. I'm objecting. THE COURT: Well, I think I can take it as far as weight's concerned, Mr. Scarisbrick. [30] On the appeal of that decision, the then Chief Justice of the British Columbia Superior Court said: The appellant relies on the decision of the majority of the Supreme Court of Canada in R. v.

Corbett (SCC), [1988] 1S.C.R. 670, holding that a trial judge has a discretion to exclude evidence of previous convictions where the application of s. 12 of theEvidence Act would undermine the right to a fair trial. Taken alone, the judge's comment to the effect that people have a habit of havingmore than one impaired driving charge might be considered to offend against the rule that previous convictions are not to be employed toestablish a propensity to commit crimes of the kind charged. But I see no reason to think that the judge based his rejection of Ahlstrom'sevidence on that view.

He went on to give, as the ground for admitting the evidence, that he could take it as a matter of weight. He madeno reference to it in his reasons for decision. I see no error in law in regarding the entire record as admissible. For instance, the fact ofprior convictions for similar offences might well have some relevance in assessing the reliability of the accused's evidence that he hadspaced his drinks so very carefully because he knew he "had to drive later on" and therefore must not exceed the limit.

Nor is theprejudicial effect of the evidence, particularly on a trial before judge alone, such as to create a realistic possibility of undermining thefairness of the trial. As is emphasized in the judgments in Corbett, the decision whether to exclude is very much one for the discretion ofthe judge. I see no basis for finding error in law. [31] In Saskatchewan, one judge has concluded that it is not necessary to bring a Corbett application in a judge-alone trial: Klimek.

Admissibility and Weight to be Given to Evidence of Previous Record: 16 At the point the Crown commenced questioning the Accused on his record, Defence Counsel objected, arguing that the convictionswere dated and highly prejudicial. I permitted the application, based on s. 12 of the Canada Evidence Act and the case law. 17 It is always open to the Accused to make a Corbett application and have a ruling on it before electing to call evidence. See R.v.Underwood (1998) (SCC), 12 C. R. (5th) 241, per Lamer, C. J.; R.v.

Corbett (1988) (SCC), 64 C.R.(3d) 1 (S.C.C.). 18 Most reported cases respecting Corbett applications deal with jury trials, where it is of fundamental importance to keep the juryfrom hearing potentially-prejudicial evidence until its admissibility is determined. In those situations, a voir dire is mandatory, as statedin Underwood, supra, at p. 245. 19 As noted in the very useful annotation by Peter Sankoff at (1994) 12 C.

R.(5th) 228 at p. 240 respecting post-Corbett decisions: "... it is worth pointing out that with the jury trial comprising a small percentage of the criminal persecutions (sic) in Canada, there hasyet to be a serious discussion as to whether Corbett has any real application in a trial by judge alone.

In practice, it seems as if criminalrecords are tendered as a matter of course in non-jury trials, with the assumption made that a trial judge can properly ignore theprejudicial effects of the record.[footnote omitted] So long as the prevailing approach in Canada is to have all pre-trial and interlocutorymotions heard by the trial judge, there would seem to be little point in raising a Corbett application as the evidence will have to be putbefore the trier of fact in order to get a ruling on the motion anyway...." 20 In a non-jury trial, it is my view that there is ordinarily no need for the defence to formally make a Corbett application, requestingan order excluding evidence of convictions whose prejudicial effect outweighs their probative value.

Rather, at whatever point the issueof the Accused's record is raised (either on a formal application prior to calling defence evidence, or when the prosecutor proceeds unders. 12), the duty of the judge sitting alone is to indicate that he is instructing himself that he must not treat the record of the Accused astending to show that the Accused is the kind of person who would be disposed to commit the offence charged - that is, that he must notinfer from the record that the Accused has a propensity to commit criminal offences. See for example R. v. McIlvride (BC CA), [1979] 6 W. W.

R. 93 (B.C.C.A.), where the trial judge wrongly instructed the jury that "having a criminal record brands theAccused as an unreliable person to give evidence under oath". 21 In most cases involving judge alone, (and in this case), the evidence adduced during the Crown's case, together with thesubmissions of Defence counsel during or at the close of the case, will enable the judge to properly instruct him or herself without theneed for a voir dire or the attendant concerns regarding defence disclosure.

In the event counsel wishes to specifically draw particularconvictions to the Court's attention, in order to highlight probative or prejudicial effect and consequent inclusion or exclusion from theCourt's consideration, this can ordinarily be done during final argument. [32] A Newfoundland court disagreed. Nonetheless, the judge in T.J.B., acknowledged that there is “a certain artificiality” in a

Corbett application in a judge-alone trial: The Cross-Examination of T.J.B. on His Previous Convictions: . . . 27 In R. v. Klimek (2000), (SK PC), 33 C.R. (5th) 377 (P.C.), the Court held that when a trial is held before ajudge sitting alone, a Corbett voir dire is unnecessary because the trial judge will learn of the accused's previous convictions during thevoir dire in any event . . . 28 There may be a certain artificiality to the procedure I propose. Indeed, whether a voir dire is or is not held, a trial judge sittingalone will learn that the accused has a criminal record.

However, there is much to be said for the use of voir dires in determining ifpotential inadmissible evidence is admissible. Firstly, it forces the parties to concentrate on the specific issue at hand. Secondly, anaccused person should not be subjected to cross-examination that is irrelevant. Thus, I am unable to agree with the Klimek approach. [33] In

summary, a Corbett application in a judge-alone trial might be an effective way to remind all trial participants about thedangers to trial fairness in this area. It will, presumably at least, ensure that the judge’s eventual reasons on the verdict will demonstratethe line of reasoning adopted, a comfort which is not available in jury trials.

However, having in mind the very limited resourcesavailable in the criminal justice system, for example, the need to ensure that all accused persons will be tried within Jordan limits, injudge-alone trials, it might be more efficient to focus directly on the use which can be made of a criminal record instead of holding aCorbett hearing. 6.

The Sarrazin decision does not authorize me to depart from established Corbett law [34] There has been interesting academic speculation about whether the recent Sarrazain decision of the Supreme Court of Canadamight favour a reassessment of the possible bias against accused persons with criminal records: see Freeman, above. One example of biasin the jury system which has been addressed directly is potential bias on the part of members of the jury panel with respect to race orsexual orientation. Bias against convicts should perhaps be re-assessed.

Indeed, as another interesting academic commentary surmises –see Dufraimont, above - there may be a real and constant bias on the part of members of the public against accused persons havingcriminal records. The funding of the criminal justice system is such that it may be difficult for individual accused to present any suchcurrent social science on that issue to the court. If such evidence were presented, courts might re-assess whether there is any limitinginstruction which can overcome that bias. This application is not, however, one in which such issues can be resolved. Heard on the 21st day of December, 2016.

Dated at the City of Edmonton, Alberta this 22nd day of December, 2016. J.B. Veit J.C.Q.B.A. Appearances: Gary E. Smith, Fix & Smith Criminal Law Office for the Accused Walter Devenz, Alberta Justice for the Crown

APPENDIX A CRIMINAL RECORD 1986-01-16 B E & Theft, Sec 306(1) (

B) CC 1987-11-24

(1) Theft under $1000, Sec 294(

B) CC (02 Chgs)

(2) Poss of Property Obtained by Crime under $1000, Sec 313(

B) CC

(3) Fail to Appear, Sec 133(5) CC 1987-11-24 Mischief, Sec 387 CC 1988-09-19 Theft over $1000, Sec 294(

A) CC 1988-11-03 Driving with more than 80 mgs of Alcohol in Blood, Sec 237(

B) CC 1990-05-07

(1) Assault with a Weapon, Sec 267(1)(

A) CC

(2) Assault, Sec 266 CC

(3) Theft over $1000, Sec 334(

A) CC

(4) Poss of Property Obtained by Crime, Sec 354 CC, (02 Chgs) 1991-05-14 Assault with a Weapon, Sec 267 (1)(

A) CC 1992-10-01

(1) Obstruction, Sec 129(

A) CC

(2) Fail to Comply with Probation Order, Sec 740 CC 1994-04-13 Manslaughter, Sec 236 CC 2005-03-07

(1) Theft, Sec 334 CC

(2) Fail or Refuse to Provide Sample, Sec 254(3)(

A) CC 2008-04-22 Fail to Comply with Recognizance, Sec 145(3) CC (02 Chgs) 2010-02-16

(1) Aggravated Assault, Sec 268 CC

(2) Assault, CBH, Sec 267 (

B) CC 2011-11-01

(1) Assault, Sec 266 CC

(2) Fail to Comply with Probation Order, Sec 733.1

(1) CC 2012-03-15 Fail to Comply with Probation Order, Sec 733.1(1) CC 2013-02-15 Fail to Comply with Probation Order, Sec 733.1 CC Attempt to steal a motor vehicle, Secs 463/333.1 2013-03-27 Fail to Comply with Recognizance, Sec 145(3), (3 charges) Obstruction of peace officer, Sec. 129