R. v. Young, 2023 BCSC 276

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Young, 2023 BCSC 276 Date: 20230228 Docket: 96160-2 Registry: Kelowna Between: Rex v. George Nicholas Young Before: The Honourable Mr. Justice Gomery Reasons for Ruling on Corbett Voir Dire Counsel for the Crown: M. TreddenickCounsel for the Accused: M. PattersonPlace and Date of Voir Dire: Kelowna, B.C. February 16, 2023Place and Date of Judgment: Kelowna, B.C. February 28, 2023 Introduction [1] George Nicholas Young is charged that he committed an aggravated assault of Tyler Takeda, contrary to s. 286(2) of theCriminal Code, R.S.C. 1985, c. C-46.

He has elected to be tried by judge alone. [2] Mr. Young has an extensive criminal record. At the close of the Crown’s case, Mr. Young sought an anticipatory ruling on avoir dire that his criminal record be redacted for the purpose of cross-examination, if he gives evidence. This is known as a Corbettapplication, after R. v. Corbett, [1988] 1 S.C.R. 670, . Mr. Young has Indigenous ancestry and he incorporated Gladueprinciples (after R. v. Gladue, [1999] 1 S.C.R. 688, ) into his argument. He relied on R. v. King, 2022 ONCA 665 asstating the correct legal approach.

Applying that approach, he submits that only a single criminal conviction, for robbery in 2018, shouldbe available to the Crown for use in cross-examination. [3] Crown counsel agreed that King states the law to be applied, but disagreed that Mr. Young’s criminal record should be edited. She submits that the entire criminal record should be available for use in cross-examination, because it discloses a pattern of disregardfor the law and the moral values accepted by society. [4] At the conclusion of the voir dire, I ordered that the criminal record that may be put to Mr.

Young in cross-examination shouldbe limited to: • three convictions in 2015 and 2016 for driving while disqualified; • a 2017 conviction for failure to appear in 2016; • a 2018 conviction for robbery in 2017; and • a 2019 conviction for assault causing bodily harm. [5] I said that my reasons for the ruling would follow. These are the reasons. Legal framework [6] At paras. 132-201, King provides a comprehensive account of the legal principles governing a Corbett application. I will notattempt to replicate it in these reasons. The following are some highlights:

a) While it is not otherwise open to the Crown to adduce evidence of an accused’s prior convictions, when the accused testifies, cross- examining counsel are presumptively entitled to adduce evidence of the fact of the conviction, its date and place, and the penalty imposed; King, at paras. 138 and 142;

b) The presumptive admissibility of prior convictions rests on the theory that they are relevant to an assessment of the accused’s credibility while testifying, though the degree of relevance depends on the nature of the previous conviction so that, historically, convictions for offences of dishonesty (deceit, fraud, cheating and theft) and disrespect for the administration of justice have carried greater weight; King, at para. 140;

c) However, the admission of evidence of prior convictions carries with it the risk that the trier of fact will make use of them for the improper purpose of inferring a propensity to commit the offence with which the accused is now charged; King, at para. 141;

d) To limit that risk, on a Corbett application, a trial judge may order that certain convictions (or all of them) be excluded from the record to be used in cross-examination where the judge is satisfied, on a balance of probabilities, that the probative value arising from them is outstripped by the prejudicial effect that may arise from their admission; King, at para. 145;

e) The assessment is discretionary and trial judges typically consider, among other factors, (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the trier of fact; King, at paras. 145 and 201;

f) Where the accused is an Indigenous person, in the exercise of their discretion judges should take into account social realities, including the consequences of overt and systemic racism experienced by Indigenous people, bearing in mind that trial fairness is the overarching concern in a Corbett application; King at paras. 172-173;

g) Accordingly, the judge must “… place the Indigenous accused’s criminal record within the context in which it has been accumulated, one that corrects for possible systemic biases, stereotypes and assumptions”; King, at para. 179;

h) In particular, the context can detract from the strength of the credibility inference that would otherwise be taken. Accounting for distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is “… much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear”; King, at para. 180;

i) While evidence is required of systemic and background factors associated with indigeneity that have impacted the accused’s life, there need not be a direct causal link between those circumstances and past offending conduct that resulted in a conviction; King, at paras. 182-184;

j) The task of the judge is to determine, in the light of the evidence, whether an inference can safely be drawn from the fact and nature of the conviction to a lack of credibility.

As Fairburn A.C.J.O. and George J.A., writing for the Court, put it in King at para. 185: … Looking at the conviction in the context of discrimination – whether direct, indirect, or systemic – allows the trial judge to determine whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law, or whether the impact of the experience of racism on this particular accused’s life renders the credibility inference so tenuous that admission of the conviction is gutted of its probative value.

k) The judge must also consider whether, in the context of this Indigenous accused, the risk of propensity-based reasoning is increased by the presence of conscious or unconscious racial stereotypes that are pervasive within Canadian society; King, at paras. 193-196. Mr. Young’s background [ 7 ] Mr. Young was born in November 1980 and is now 42 years old. [ 8 ] Mr. Young testifies that his ancestry is Indigenous on his father’s side and that his paternal grandfather was relocated from Saskatchewan to attend a residential school outside Dawson Creek. He was told this by his father. Mr.

Young describes his father as an alcoholic. He understands that his father and his father’s brother were both placed in foster care when they were young. [ 9 ] Mr. Young’s father married his mother and lived with the family until he was seven years old, when the mother left, taking the children with her. Prior to the separation, Mr. Young testifies that he suffered physical and sexual abuse inflicted by his father. His father returned to the household when Mr. Young was 14 years old, at which point Mr.

Young left home because he believed that, if he stayed, he would suffer further abuse. [ 10 ] After he left home, Mr. Young lived in a series of group homes where he started drinking and doing drugs. He describes himself as an angry young man who was drinking, doing drugs, and committing crimes to support his habits. He was charged with a series of offences in youth court. He was first sentenced to jail in 1997 at age 16. Mr. Young’s offences continued into adulthood and includes assaults and crimes of dishonesty such as theft, among many others.

By my count, he has 35 convictions in all. [ 11 ] In October 2000, when he was 19 years old, Mr. Young was sentenced to a two-year prison term at the Matsqui institution for two counts of aggravated assault. During that term, he was introduced to and became addicted to heroin. [ 12 ] Mr. Young has two biological children from short-term relationships. His first long-term intimate relationship led to a marriage in 2013. The marriage has lasted, with a long separation that began in 2018. [ 13 ] At his wife’s urging, in 2015 Mr. Young first sought counselling for the abuse he had experienced. This involved monthly

counselling sessions that lasted for about a year and a half. He first received counselling for his addictions in September 2022, through a four-month residential program. This counselling involved group sessions that lasted for a couple hours every morning. [ 14 ] Mr. Young has few family connections. His mother has died. His only sibling is a half-sister he is not in touch with. In adulthood, he has established what he describes as a short and unemotional relationship with his father, who is all the family he has left. His uncle, who was his father’s brother, has died. [ 15 ] Mr.

Young has participated in Indigenous cultural practices when he was 18 years old. He goes to powwows and sweat lodges. [ 16 ] It is fair to say that Mr. Young’s family background and family history echo those of many Indigenous accused persons and offenders who find themselves in court. Abuse, a broken home, and ineffective social supports together with his experience of the criminal justice system have contributed to making him an alcoholic, an addict, and a prolific offender. To make this observation is not to deny Mr. Young’s responsibility for his crimes, but to put them in context.

The criminal record [ 17 ] At the risk of some oversimplification, Mr. Young’s criminal record may be summarized as follows. [ 18 ] He has nine convictions for assaults of varying degrees of severity. All but one of the assaults occurred prior to 2004. The last was an assault causing bodily harm committed on November 21, 2019. [ 19 ] He has one conviction for criminal negligence causing death, and a related conviction for leaving the scene of an accident, both on January 1, 2010. Those convictions were recorded in December 2011 and Mr. Young’s sentence included a 10-year driving prohibition.

He was convicted subsequently of driving while disqualified on three occasions, in April and June 2015, and August 2016. [ 20 ] Mr. Young has seven convictions for property offences including theft, possession of stolen property, breaking and entering with intent to commit an indictable offence, robbery, and mischief. As with the assault convictions, all but one of these precedes 2004. The exception is a robbery conviction where the offence was committed on January 1, 2017. [ 21 ] Mr. Young has two convictions for offences involving drugs or alcohol, both dated.

One is a conviction for driving under the influence of alcohol in 2004, and the other is a conviction in 2007 for possession of drugs for the purpose of trafficking. [ 22 ] Finally, Mr. Young has 12 convictions for what I will term compliance offences, that is, offences involving noncompliance with lawful requirements imposed upon him by police officers, correctional institutions and courts. All but one of these precede 2005. The exception is a conviction in January 2017 for failing to appear in court as required.

Analysis [ 23 ] I reject the Crown’s argument that nothing should be redacted from the record because, taken as a whole, it discloses a pattern of disregard for the law and the moral values accepted by society. The same could be said of any extensive criminal record. The lesson I take from the authorities is that, in examining a criminal record on a Corbett application, one cannot paint with a broad brush. It is necessary to consider with particularity the nature of the offences, the timing, and so on.

The broad approach advocated by the Crown flirts with the very risk – inferring a propensity to commit the offence in issue in this case from a record of past offences – that a Corbett application is intended to avoid. [ 24 ] The greater part of Mr. Young’s criminal record involves offences committed prior to 2005, which is the year he turned 25. I think that part of the record carries relatively little weight in this case because it is so dated and because much of it is closely associated with his awful upbringing to which his Indigenous background has contributed.

The extent to which these dated offences support an inference that he will not give truthful evidence under oath is limited, and it is outweighed by the prejudicial effect if the convictions – particularly the old assault convictions – are taken into account. [ 25 ] On the other hand, I think there is sufficient probative weight associated with Mr. Young’s recent convictions that it is just that the Crown be permitted to make use of them in cross-examination. By 2015, Mr. Young was in his mid-thirties, married, and in counselling.

His three convictions in 2015 and 2016 for driving while disqualified could be taken to evince a disrespect for the law, as could his 2017 conviction for a failure to appear in court. His 2018 robbery conviction is significant because robbery is a crime of dishonesty and the use of force, manifesting a marked disrespect for the property rights of others. His 2019 conviction for assault causing bodily harm does not involve a crime of dishonesty, but is recent enough to carry some weight in consideration of Mr. Young’s testimonial credibility.

In relation to all these offences, but especially the robbery and assault convictions, I can instruct myself, in my capacity as trier of fact, to beware not to draw an inference as to a propensity to commit the aggravated assault with which Mr. Young is now charged. [ 26 ] In permitting the Crown to make use of the convictions I have listed in cross-examination, I am not offering any opinion as to what weight, if any, they should ultimately carry, in an assessment of Mr. Young’s credibility. That is a matter to be addressed in final argument. This question will require an assessment of the entirety of Mr.

Young’s evidence. In this application, all I am deciding is that the Crown may put these convictions to Mr. Young and make an argument based on his responses. [ 27 ] These are my reasons for the ruling set out at paragraph [4] of these reasons. “Gomery J.”