Corbett Application: Difference between revisions

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'''Balance of Factors'''<br>
; Balance of Factors
The determination is based on balancing factors which include:<ref>{{supra1|Corbett}}</ref>
The determination is based on balancing factors which include:<ref>{{supra1|Corbett}}</ref>
#the nature of the conviction;
#the nature of the conviction;

Revision as of 16:50, 20 January 2019

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]

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.[8]

Timing of the Application
The accused can bring a Corbett application any time before electing to call evidence.[9]

Balance of Factors

The determination is based on balancing factors which include:[10]

  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.[11]

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.[12] Some cases says that the only admissible convictions are those that demonstrate dishonesty or directly concern integrity are admissible.[13] 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.[14]

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.[15]

Certain types of convictions are not generally considered relevant to credibility. That include offences such as assault, drug offences, or impaired driving.[16]

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".[17]

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.[18]

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.[19]

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".[20]

  1. ↑ see R v Corbett [1988] 1 SCR 670, 1988 CanLII 80 (SCC), per Dickson CJ
  2. ↑ R v Mayers, 2014 ONCA 474 (CanLII), per Doherty JA, at para 3 to 6
  3. ↑ Corbett, supra
    Mayers, supra, at para 5
  4. ↑ R v NAP, 2002 CanLII 22359 (ON CA), (2002), 171 CCC (3d) 70 (Ont. C.A.), 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), per Ryan JA
  7. ↑ Corbet, supra, at paras 35 to 50
  8. ↑ R v Batte, 2000 CanLII 5750 (ONCA), per Rosenberg JA
  9. ↑ R v Underwood (1998) 1998 CanLII 839 (SCC), 12 C. R. (5th) 241, per Lamer CJ
    R v Klimek (2000), 2000 CanLII 19597 (SK PC), 33 C.R. (5th) 377 (P.C.), per Halderman J, at para 17
  10. ↑ Corbett, supra
  11. ↑ R v DBT, 1994 CanLII 929 (ON CA), (1994), 89 CCC (3d) 466 (Ont. C.A.), per curiam at p. 470
    R v Guthrie, 2014 ONSC 3269 (CanLII), per Parfett J, at para 7
  12. ↑ Madrusan, supra
  13. ↑ R v Ceballo, [2008] OJ No 4931, 2008 CanLII 63565 (ONSC), per Archibald J
  14. ↑ R v Saroya, 1994 CanLII 955 (ONCA), per curiam
  15. ↑ Corbett, at para 158
    See also R v DAL, [2009] OJ No 2885 (S.C.J.)(*no CanLII links) , at para 6
  16. ↑ Guthrie, supra, at para 7
  17. ↑ Corbett, at para 27
    R v Willis, [1999] OJ No 1551 (S.C.J.)(*no CanLII links) , at para 9
    R v Wilson, [2006] OJ No 2478 (C.A.), 2006 CanLII 20840 (ON CA), per Rosenberg JA, at para 33
  18. ↑ R v Ban, 2014 ONCA 682 (CanLII), per curiam
  19. ↑ Mayers, supra, at paras 28 to 33
    cf. Klimek (2000), 2000 CanLII 19597 (SK PC), 33 C.R. (5th) 377 (P.C.), per Halderman J - judge claims that voir dire on Corbett unnecessary in judge-alone trials
  20. ↑ Mayers, supra, at para 3
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