Corbett Application

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 95437)

General Principles

See also: Credibility Based on Prior Criminal Record

A Corbett application is a defence application to prohibit the use of the accused's record of conviction in cross-examination for the purpose of attacking their credibility. [1]

Discretion

The judge has a discretion to edit what parts of an accused criminal record that may be used in trial on cross-examination of the accused.[2]

Discretion should not be exercised absent "clear grounds in policy or law for doing so."[3]

Presumptions

There is no presumption against the use of a criminal record where the accused chooses to testify. Normally, a cross-examination of the record will be the usual course of action.[4]

A criminal record is generally considered admissible.[5] The burden is upon the accused to establish the basis to edit any part of their record.[6]

The judge should begin with the presumption that the jury should receive all relevant information about the record subject to limiting instructions.[7]

This presumption relies on the assumption that the convictions are relevant for credibility while testifying.[8]

The type of conviction will affect the relevancy to credibility. Offences of idhonesty will be probative to the accused's honesty in court.[9] Other types of offences can be relevant by their ability to demonstrate a "[l]ack of trustworthiness" flowing from the "repeated contempt for laws" they are bound to obey.[10]

Burden of Proof and Standard of Proof

Given that s. 12 of the CEA allows the use of the prior record, the burden is upon the applicant to show that the prejudicial effect warrants exclusion.[11] The determination is a discretionary one and is determined on a balance of probabilities.[12]

Editing Record

The judge has the right to "sanitize" the record, such as calling sexual assault an assault, where the record would otherwise be overly prejudicial.[13]

Timing of the Application

The accused can bring a Corbett application any time before electing to call evidence.[14]

Balance of Factors

The determination is based on balancing factors which include:[15]

  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.
Analysis

The court is to balance the risk that the jury may use the record for an improper purpose suggesting predisposition against the risk of presenting a distorted image of the credibility of the witness.[16]

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.[17] Some cases say that the only admissible convictions are those that demonstrate dishonesty or directly concern integrity are admissible.[18] 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.[19]

As a matter of fairness, the Crown should not be prevented from cross-examining the accused on his previous record when the defence has already done so on a Crown witness.[20]

Types of Offences

Certain types of convictions are not generally considered relevant to credibility. That includes offences such as assault, drug offences, or impaired driving.[21]

However, offences of dishonesty, such as theft or obstruction of justice, are considered relevant as they reveal "contempt for law that he is legally and morally bound to obey."[22]

Prior record for cultivating marijuana does not add probative value with respect to the accused's claim that he did not have knowledge or expertise in cultivating, but can be used to assess credibility generally.[23]

Aboriginal Accused

Where the accused is aboriginal, the court must consider "Gladue" principles in its assessment.[24]

Judge-alone Trials

While Corbett applications are mostly used in jury trials, they provide some utility in a judge-alone trial, not the least of which is ensuring trial fairness.[25]

Standard of Appellate Review

The decision to exclude part of a criminal record is reviewable only on "error in principle", on "misapprehension of material facts" or where the exercise of discretion is "unreasonable."[26]

Procedure

The Corbett application should be brought at the end of the Crown's case and should be decided before the accused is asked to choose whether to call evidence.[27]

  1. ↑ see R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, per Dickson CJ
  2. ↑ R v Mayers, 2014 ONCA 474 (CanLII), OJ No 3128, per Doherty JA, at paras 3 to 6
  3. ↑ Corbett, supra
    Mayers, supra, at para 5
  4. ↑ R v NAP, 2002 CanLII 22359 (ON CA), 171 CCC (3d) 70, per Doherty JA, at para 20 ("There is no presumption against the admissibility of the accused's criminal record where he or she chooses to testify. To the contrary, as indicated by the majority in R v Corbett, supra, cross-examination on a criminal record of an accused who chooses to testify will be the usual course.")
  5. ↑ 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."
  6. ↑ R v Madrusan, 2005 BCCA 609 (CanLII), 203 CCC (3d) 513, per Ryan JA
  7. ↑ Corbet, supra, at paras 35 to 50
  8. ↑ R v King, 2022 ONCA 665 (CanLII), per Fairburn ACJ and George JA, at para 140
    R v Stratton, 1978 CanLII 1644 (ON CA) (working hyperlinks pending) at p. 461 (CCC)
    R v Brown, 1978 CanLII 2396 (ON CA) (working hyperlinks pending) at p. 342
    R v P(NA), 2002 CanLII 22359 (ON CA) (working hyperlinks pending) at para. 20
  9. ↑ King, supra, at para 140
    {{supra1|Brown, at p. 342
    R v MC, 2019 ONCA 502 (CanLII) (working hyperlinks pending), per Watt JA, at para 56
    R v Gayle, 2001 CanLII 4447 (ON CA) (working hyperlinks pending), at para 81, leave refused, [2001] S.C.C.A. No. 359
  10. ↑ King, supra, at para 140
    MC, supra, at para 56 see also Gayle, at para. 81
    R v Thompson, 2000 CanLII 5746 (ON CA) (working hyperlinks pending), at para 31
  11. ↑ King, supra, at para 143 ("The presumptive admissibility of these convictions pursuant to s. 12(1) of the Canada Evidence Act places the onus for any such application directly on the defence.")
  12. ↑ King, supra, at para 145 ("Where the trial judge is satisfied on a balance of probabilities that the probative value arising from the criminal record is outstripped by the prejudicial effect that may arise from its admission, otherwise admissible convictions will be excluded.")
  13. ↑ R v Batte, 2000 CanLII 5750 (ON CA), 145 CCC (3d) 498, per Rosenberg JA
  14. ↑ R v Underwood, 1998 CanLII 839 (SCC), 12 CR (5th) 241, per Lamer CJ
    R v Klimek, 2000 CanLII 19597 (SK PC), 33 CR (5th) 377 (P.C.), per Halderman J, at para 17
  15. ↑ Corbett, supra at p. 698, per Dickson C.J., and at pp. 740-44, per La Forest J. (dissenting)
    King, supra, at para 145
    MC, supra, at para 59
    R v McManus, 2017 ONCA 188 (CanLII), at para 82
  16. ↑ R v DBT, 1994 CanLII 929 (ON CA), 89 CCC (3d) 466, per curiam, at p. 470
    R v Guthrie, 2014 ONSC 3269 (CanLII), per Parfett J, at para 7
  17. ↑ Madrusan, supra
  18. ↑ R v Ceballo, 2008 CanLII 63565 (ON SC), [2008] OJ No 4931, per Archibald J
  19. ↑ R v Saroya, 1994 CanLII 955 (ON CA), 36 CR (4th) 253, per curiam
  20. ↑ , supra, at para 158
    See also R v DAL, [2009] OJ No 2885 (SCJ)(*no CanLII links) , at para 6
  21. ↑ Guthrie, supra, at para 7
  22. ↑ Corbett, supra, at para 27
    R v Willis, [1999] OJ No 1551 (SCJ)(*no CanLII links) , at para 9
    R v Wilson, 2006 CanLII 20840 (ON CA), [2006] OJ No 2478 (CA), per Rosenberg JA, at para 33
  23. ↑ R v Ban, 2014 ONCA 682 (CanLII), per curiam
  24. ↑ King, supra
  25. ↑ Mayers, supra, at paras 28 to 33
    cf. R v Klimek, 2000 CanLII 19597 (SK PC), 33 CR (5th) 377 (P.C.), per Halderman J (judge claims that voir dire on Corbett unnecessary in judge-alone trials)
  26. ↑ Mayers, supra, at para 3
  27. ↑ King, supra, at para 145

See Also

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