Credibility Based on Prior Criminal Record

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 95415)

General Principles

Under s. 12(1) of the Canada Criminal Evidence Act, any witness may be questioned on whether they have been convicted of prior offences.[1] 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.[2] The section 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.[3]

Section 12 states:

Examination as to previous convictions

12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
[omitted (1.1) and (2)]
R.S., 1985, c. C-5, s. 12; 1992, c. 47, s. 66.

– CEA (CanLII), (DOJ)

Note up: 12(1)

Types of Convictions

It is permissible to cross-examination on convictions under any federal legislation[4], certain convictions under provincial legislation[5] , and convictions under foreign legislation where it would constitute an offence in Canada.[6]

Outstanding Charges

A charge against any witness cannot be used as evidence against credibility due to the presumption of innocence. He also cannot be cross-examined on outstanding charges.[7] There is a limited exception to this rule.[8]

Use of Co-Accused Conviction

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 accused's knowledge and intent.[9]

Youth Records

It is not permitted to cross-examine a person on their youth criminal record without satisfying the requirements for production of records under the Youth Criminal Justice Act.[10]

  1. ↑ See s. 12 CEA
  2. ↑ see Discretionary Exclusion of Evidence
  3. ↑ R v Davidson (1974) 20 CCC (2d) 292 (ONCA)(*no CanLII links) , at p. 443
    R v Gassyt and Markowitz, 1998 CanLII 5976 (ON CA), 127 CCC (3d) 546, per Charron JA, at p. 560
    R v Miller, 1998 CanLII 5115 (ON CA), 131 CCC (3d) 141, per Charron JA, at p. 147
    R v H(BJ), 2000 CanLII 3190 (ON CA), [2000] OJ No 279 (ONCA), per curiam, at para 2
  4. ↑ R v Watkins, 1992 CanLII 12750 (ON CA), 70 CCC (3d) 341, per curiam
  5. ↑ R v Green, 1943 CanLII 404 (BC CA), (1943) 79 CCC 227 (BCCA), per Fisher JA
  6. ↑ R v Stratton, 1978 CanLII 1644 (ON CA), OR (2d) 258, per Martin JA
  7. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 77
  8. ↑ R v Titus, 1983 CanLII 49 (SCC), [1983] 1 SCR 259, per Ritchie J
  9. ↑ R v Garneau, 2012 NSCA 41 (CanLII), 998 APR 337, per MacDonald CJ
  10. ↑ R v Sheik-Qasim, 2007 CanLII 52983 (ON SC), 230 CCC (3d) 531, per Molloy J

Accused's Record

See also: Corbett Application

When an accused testifies the Crown is limited in the use of the accused prior record.

First, the crown can only cross on their convictions, not any other type of charges.[1]

Second, the crown can only question the accused on (1) the offence convicted; (2) the date and place of conviction; and (3) the sentence imposed. [2]

There is an exception to the section limitation should the accused put his character in issue.

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

  1. ↑ R v King, 2022 ONCA 665 (CanLII), at para 142 ("The first limitation is that, unlike other witnesses, the cross-examination of an accused on their criminal record is confined to convictions alone.")
  2. ↑ R v Vincent, 1998 CanLII 6339 (ON CA), [1998] OJ No 3666 (CA), per curiam at 16-17
    R v Menard, 1996 CanLII 685 (ON CA), (l996), 108 CCC (3d) 424, per Arbour JA, at pp. 435-436 affirmed (l998), 125 CCC (3d) 416 at 427-428, 433
    R v Bricker, 1994 CanLII 630 (ON CA), 90 CCC (3d) 268, per Laskin JA, at pp. 274-279
    R v Shortreed, 1990 CanLII 10962 (ON CA), 54 CCC (3d) 292, per Lacourciere JA, at pp. 305-307
    R v Furrant, 1983 CanLII 118 (SCC), 4 CCC (3d) 354, [1983] 1 SCR 124, per Dickson J at 368-369
    R v Laurier, 1983 CanLII 3507 (ON CA), (l983), I OAC 128, at p. 131
    R v Howard and Trudel, 1983 CanLII 3507 (ON CA), 3 CCC (3d) 399, per Howland CJ at 417
    R v Lizotte, 1980 CanLII 2957 (QC CA), 61 CCC (2d) 423 (Que.C.A.), per Kaufman JA, at 432-434
    R v Boyce, 1975 CanLII 569 (ON CA), 23 CCC (2d) 16, per Martin JA at 35-37
    R v McLaughlin, 1974 CanLII 748 (ON CA), 20 CCC 59, per Evans JA at 60-61

Non-Accused's Record

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

The criminal record of the deceased in a homicide cannot be used to suggest that the deceased’s “demise was a civic improvement”.[2]

The criminal record of a victim is relevant to “the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased."[3]

The record can be used to establish a violent disposition to carry or use a weapon and therefore increase the chances of the victim reaching for a weapon before their death.[4]

  1. ↑ R v Bugar, 2010 ABCA 318 (CanLII), 490 AR 241, per curiam
  2. ↑ R v Head, 2014 MBCA 59 (CanLII), 310 CCC (3d) 474, per Mainella JA, at para 15
    R v Varga (R.L.), 2001 CanLII 8610 (ON CA), per Doherty JA, at para 7
  3. ↑ R v Scopelliti, 1981 CanLII 1787 (ON CA), per Martin JA
  4. ↑ Head, supra, at para 16
    R v Sims, 1994 CanLII 1298 (BC CA), per Wood, at pp. 421-26 (BCCA)

Proving a Record

See also: Notice of Increased Penalty#Proving Prior Record and Proof of Previous Conviction

Corbett Application

See Also

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