R. v. King, 2022 ONCA 665
WHAT YOU NEED TO KNOW
· Court of Appeal mandates that R. v. Gladue principles must be taken into account in deciding Corbett applications brought by Indigenous accused.
· An accused’s Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application.
· In assessing the probative value of an Indigenous accused’s record, judges must consider the context in which a criminal record has been accumulated, one that corrects for possible systemic biases, stereotypes, and assumptions. This context may reveal that the criminal record is more so the product of systemic racism than reflective of an Indigenous accused’s disregard for the law.
· The accused must not establish a direct or causa link between systemic discrimination and their criminal record. Evidence to support the circumstances that have impacted the accused’s life is sufficient.
· Given the pervasiveness of anti-Indigenous racism in Canadian society, there is an inherent, elevated risk of prejudice when Indigenous accused are cross-examined on their criminal records.
BACKGROUND
The respondent, Dale King, an Indigenous teenager, was charged with second-degree murder after he shot and killed Yosif Al-Hasnawi, a young university student, on December 2, 2017. There was no doubt that Mr. King was the shooter. The trial focused on (1) whether Mr. King acted in self-defence, and, if not, (2) whether he had the intention to commit murder?
The jury returned a verdict of not guilty. The Crown now appeals Mr. King’s acquittal.
ISSUES ON APPEAL
The Crown raises three grounds of appeal:
(1) First, the trial judge erred in his charge jury relating to self-defence;
(2) Second, the trial judge erred in excluding evidence of Mr. King’s alleged involvement in a robbery just before the shooting (the “prior discreditable conduct ruling”); and
(3) Third, the trial judge erred in excluding evidence of Mr. King’s prior assault convictions resulting in an imbalanced evidentiary record (the “Corbett issue”).
This summary will focus on the Corbett issue only. The Court was satisfied that the instructions on self-defence were adequate. The Court was also satisfied that the trial judge’s prior discreditable conduct ruling did not contain any reversible error.
Disposition – Crown appeal dismissed.
Mr. King has a lengthy criminal and youth record, including 21 findings of guilty under the Youth Criminal Justice Act and 8 convictions as an adult. At the close of the Crown’s case, Mr. King brought a Corbett application seeking to have many of his prior convictions excluded.
CORBETT APPLICATIONS - GENERALLY
Section 12(1) of the Canada Evidence Act provides that once a witness takes the stand, thereby putting their credibility at issue, counsel who cross-examines them are presumptively allowed to adduce evidence of prior convictions. This applies to all witnesses, including an accused who chooses to testify in their own defence. The rationale behind this rule rests on the theory that prior convictions are relevant to a witness’ credibility. In the context of an accused person testifying, however, the concern is that when their criminal record follows them to the witness stand, there is a risk that the convictions will be used not only to assess credibility but also for improper and impermissible reasoning: namely, that these prior convictions mean they are the type of person to have committed the charged offences.
As a result, two limitations have been placed on the use of an accused’s prior convictions:
(1) Cross-examination of an accused on their criminal record is confined to convictions alone; and
(2) They may only be cross-examined on three narrowly circumscribed areas:
a. The offence convicted of;
b. The date and place of the conviction; and
c. The punishment imposed in the wake of the conviction.
These limitations are not always sufficient to protect an accused against the prejudice that can arise from the trier of fact learning about their criminal past. As a result, an accused may bring a “Corbett application” to have parts of or the entirety of the criminal record excluded from the Crown’s cross-examination.
This application is brought at the end of the Crown’s case and ruled upon before the accused must decide whether they are calling a defence. The onus is on the accused/defence to establish that the convictions should be excluded.
Corbett applications are discretionary. This means that it is up to the trial judge to decide, on a balance of probabilities, whether the probative value arising from the prior convictions is outweighed by the prejudicial effect from its admission. In assessing the probative value and prejudicial effect of a particular accused’s convictions, the trial judge will generally consider: (a) the nature of the convictions, (b) their remoteness or nearness to the matter under prosecution, (c) the similarity between the offences charged and the prior convictions, and (d) the risk of presenting a distorted picture to the jury.
MR. KING’S CORBETT APPLICATION
Mr. King’s criminal record, which contained 29 convictions, spanned about 4 years of his life, from 15 to 19 years old. It contained convictions for various offences, including failure to attend court, dangerous driving causing bodily harm, possession of controlled substance, multiple counts of breaching probation, theft, and mischief and assault, including with a weapon and causing bodily harm.
Mr. King’s Corbett application focused largely on his five assault-related convictions. In addition to the usual position that these convictions were not necessary to aid the jury in assessing his credibility, Mr. King advanced a novel argument: namely that due to his Indigeneity, if the jury were to learn about the extent of his record, there would be a heightened risk that it could cause an increased degree of prejudice against him. The Crown disagreed with this submission.
THE TRIAL JUDGE’S CORBETT RULING
The trial judge granted Mr. King’s Corbett application and excluded all assault-related convictions as well as all convictions from when Mr. King was only 15 years old and a few other redundant convictions. This reduced Mr. King’s record from 29 entries to 14 total. The trial judge later required Mr. King to testify about his Indigenous background and how he was disadvantaged or discriminated against.
In his ruling, the trial judge noted that while the fact of Mr. King’s Indigeneity alone was not enough to invoke the application of the Gladue principles in a Corbett application, evidence that Mr. King had been “disadvantaged as an Indigenous person in society” could trigger such considerations. The trial judge found Mr. King met this burden and excluded the convictions as discussed above.
GLADUE PRINCIPLES - GENERALLY
The term “Gladue principles” was coined after the Supreme Court of Canada’s decision R. v. Gladue in 1999. This decision provided guidance to sentencing judges in sentencing Indigenous offenders, including the need to take into account the systemic or background factors that may have impacted an Indigenous offender’s path to court.
These considerations are not, however, limited to the sentencing context. Rather, “they should be considered by all decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.” Gladue principles have since been applied in a variety of contexts such as extradition hearings, bail, publication ban applications, correctional authority decisions, and more.
In other words, Gladue requires judges to consider the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course, higher levels of incarceration of Aboriginal peoples.
APPLICATION OF GLADUE PRINCIPLES TO CORBETT APPLICATIONS
To ensure trial fairness, trial judges must pay particular attention in a Corbett analysis to the unique circumstances of an Indigenous accused, where those circumstances affect the probative value and prejudicial impact of their criminal record.
(1) Probative Value
When weighing probative value, it is necessary for trial judges to 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.
While there must be some evidence to support the circumstances that have impacted the accused’s life, much like the evidence led in this case, there need not be a direct causal link established between those circumstances and the past offending conduct that resulted in the conviction.
In other words, within a Corbett voir dire, the accused must have demonstrated that the systemic and background factors affecting Indigenous people in Canada are tied, in some way, to the particular accused and the impugned conviction.
Once this evidence is adduced, the trial judge can determine whether an inference can safely be drawn from the fact and nature of the conviction to a lack of credibility. 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.
(2) Prejudicial Effect
The prejudicial effect in all Corbett applications is the possibility that the trier of fact will, consciously or subconsciously, engage in propensity reasoning and draw an impermissible inference: that the accused is the type of person to have committed the offence for which they stand trial because of their offending past.
When an Indigenous accused is before the court, racist stereotypes lend considerable credence to the risk of propensity-based reasoning. As a result, when calibrating the prejudice that could result from the admission of prior convictions, trial judges must take notice of the fact that Indigenous people are often the objects of racism outside and inside the criminal justice system. This racism, which is pervasive within Canadian society, includes stereotypes that relate to credibility, worthiness, and criminal propensity.
The trial judge did not err in considering Mr. King’s Indigenous ancestry, history, and personal circumstances and the broader context of widespread racism experienced by Indigenous people in excising the assault-related convictions from Mr. King’s record.
For a related discussion of Corbett applications brought by Indigenous accused, check out Emond’s “Indigenous People and the Criminal Justice System, 2nd Edition, Chapter 6: Gladue Beyond Sentencing”—Volume 7 in the Criminal Law Series.
Read the full decision here.