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r. v. corbett, [1988] 1 S.C.R. 670      

 

Lawrence Wilburn Corbett                                                                Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec and the Attorney General for Alberta                                                            Interveners

 

indexed as: r. v. corbett

 

File No.: 19220.

 

1987: March 2, 3; 1988: May 26.

 

Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Le Dain and La Forest JJ.

 

 

 

on appeal from the court of appeal for british columbia

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Fair trial ‑‑ Examination of accused as to previous convictions ‑‑ Accused charged with murder ‑‑ Previous conviction of a similar nature to offence charged admitted into evidence ‑‑ Whether s. 12(1) of the Canada Evidence Act  inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms .


 

                   Evidence ‑‑ Witnesses ‑‑ Credibility ‑‑ Examination of accused as to previous convictions ‑‑ Accused charged with murder ‑‑ Previous conviction of a similar nature to offence charged admitted into evidence ‑‑ Whether trial judge had discretion to exclude prejudicial evidence of previous conviction ‑‑ Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 12(1).

 

                   In January 1983, the accused was charged with first degree murder in respect of the death of one of his associates in the drug trade. At trial, credibility was a crucial issue. The accused denied any involvement in the killing and attacked the credibility of the Crown's witnesses who identified him as the killer. He elected to testify and his counsel sought to prevent the Crown from cross‑examining the accused on his previous record under s. 12(1)  of the Canada Evidence Act . This section provides that a witness, which includes an accused where he chooses to testify, may be questioned as to whether he has been convicted of any offence. Counsel contended that to permit cross‑examination and proof of the accused's previous convictions, in particular a previous conviction of non‑capital murder, was so highly prejudicial that it would infringe on his Charter  right to a fair trial. The trial judge rejected the argument. To minimize the adverse effect of a cross‑examination as to his criminal record, the accused admitted in his examination‑in‑chief that he had been convicted in 1954 of armed robbery, escaping custody, theft and breaking and entering, and in 1971 of non‑capital murder. In his charge, the trial judge warned the jury not to use the criminal record of the accused for any purpose other than credibility. The accused was found guilty of second degree murder and the Court of Appeal dismissed his appeal from conviction. This appeal is to determine whether the accused was deprived of his right to a fair hearing guaranteed by s. 11 (d) of the Canadian Charter of Rights and Freedoms  by reason of the introduction of evidence of his earlier conviction for non‑capital murder.

 

                   Held (La Forest J. dissenting): The appeal should be dismissed.

 

                   Per Dickson C.J. and Beetz and Lamer JJ.: Section 12  of the Canada Evidence Act  does not violate the guarantee contained in s. 11 (d) of the Charter . The effect of s. 12  is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused.

 

                   Section 12  also does not deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused. There is perhaps a risk that the jury may use the evidence of prior convictions for an improper purpose, but to conceal the prior criminal record of an accused who testifies would deprive the jury of information relevant to credibility, and create a much more serious risk that the jury will be presented with a misleading picture. The best way to balance and alleviate these risks is, as in this case, to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. To protect the accused, the trial judge may also exercise his discretion to exclude evidence of prior convictions in those unusual cases where a mechanical application of s. 12  would undermine the right to a fair trial. Further, the limitations on the use of prior convictions demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of prejudicing an accused's trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question.

 

                   Although the trial judge has a discretion to exclude evidence of prior convictions in an appropriate case, such discretion should not be exercised in favour of the accused in the present circumstances. The accused made a deliberate attack on the credibility of the Crown witnesses, largely based upon their prior record. The issue for the jury was solely that of credibility. Had the accused's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. Admitting the accused's convictions except that for non‑capital murder would not have avoided the imbalance between the Crown and the accused. The jury would have been misled rather than aided by the exclusion of that evidence, and in these circumstances, it cannot be said that such admission was unfairly prejudicial.

 

                   Per McIntyre and Le Dain JJ.: Whatever discretion may have existed to permit a trial judge to exclude admissible evidence at common law, on no basis of authority or principle can such a discretion have empowered a court to exclude questions to a witness as to past convictions in the face of the clear words of s. 12(1)  of the Canada Evidence Act , a legislative provision specifically found not to be inconsistent with s. 11 (d) of the Charter . To admit of such a discretion would be tantamount to holding that Parliament could not by clear legislative enactment alter the common law.

 

                   Per Beetz J.: Section 12(1)  of the Canada Evidence Act  would not conform with ss. 7  and 11 (d) of the Charter  unless it be construed as leaving room for the trial judge's discretion to disallow the cross‑examination of an accused as to prior convictions if the convictions are of tenuous probative value in assessing credibility and their disclosure would be highly prejudicial to the accused.

 

                   Per La Forest J. (dissenting): Evidence of previous convictions is relevant to the credibility of an accused who testifies and is prima facie admissible. But the admission into evidence of an accused's previous convictions harbours the potential to prejudice profoundly the fairness of his trial. To prevent such prejudice, the trial judge has a judicial discretion to exclude prejudicial evidence of previous convictions in an appropriate case. This discretion, which exists at common law, subsists under s. 12  of the Canada Evidence Act . In assessing the probative value or potential prejudice of evidence of previous convictions, the trial judge should take into consideration, among the most important factors, the nature of the previous conviction and its remoteness or nearness to the present charge. In particular, a court should be very chary of admitting evidence of a previous conviction for a similar crime. The more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission.

 

                   In the present case, the trial judge erred in failing to recognize the existence of the exclusionary discretion and, consequently, in admitting into evidence the previous conviction for non‑capital murder. The introduction of this evidence was, in the circumstances of the case, unjustifiably prejudicial to the fairness of the accused's trial. It is self‑evident that the prejudicial potential harboured by the admission at a trial for murder of a previous conviction for non‑capital murder was manifestly profound. Furthermore, the probative value of this item of evidence in relation to credibility was, at best, trifling. Although the accused had assailed the credibility of Crown witnesses and that credibility was the vital issue at trial, the evidence of the other previous convictions of the accused, the violation of his parole conditions, his involvement in drug transactions, amply served the purpose of impeaching the accused's credibility. The previous conviction for non‑capital murder added very little, if anything, to the jury's perception of the accused's character for veracity.

 

                   Section 12  of the Canada Evidence Act , when read in conjunction with the salutary common law discretion to exclude prejudicial evidence, does not violate an accused's right to a fair trial nor deprive him of his liberty except in accordance with the principles of fundamental justice. It is true that s. 11  of the Charter  constitutionalizes the right of an accused and not that of the state to a fair trial before an impartial tribunal. But "fairness" implies and demands consideration also of the interests of the state as representing the public. Likewise the principles of fundamental justice operate to protect the integrity of the system itself, recognizing the legitimate interests not only of the accused but also of the accuser. The recognition of a discretion to exclude evidence when its probative value is overshadowed by prejudicial effect ensures that the legitimate interests of both the public and the accused are taken into account. The factors that should be considered in exercising this discretion ensure that this occurs. The recognition and proper exercise of this discretion, therefore, ensures that s. 12  is constitutionally valid.

 

Cases Cited

 

By Dickson C.J.

 

                   Not followed: R. v. Stratton (1978), 42 C.C.C. (2d) 449; referred to: R. v. D'Aoust (1902), 5 C.C.C. 407; R. v. Brown (1978), 38 C.C.C. (2d) 339; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; Koufis v. The King, [1941] S.C.R. 481; R. v. Fushtor (1946), 85 C.C.C. 283; R. v. Bodnarchuk (1949), 94 C.C.C. 279; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424; Corbett v. The Queen, [1975] 2 S.C.R. 275; State v. Duke, 123 A.2d 745 (1956); State v. Ruzicka, 570 P.2d 1208 (1977); R. v. Grosse (1983), 9 C.C.C. (3d) 465; R. v. Kulba (1986), 27 C.C.C. (3d) 349; R. v. Jarosz (1982), 3 C.R.R. 333; Schmidt v. The King, [1945] S.C.R. 438; R. v. Rudd (1948), 32 Cr. App. R. 138; R. v. Lane and Ross (1969), 6 C.R.N.S. 273; Deacon v. The King, [1947] S.C.R. 531; R. v. Mannion, [1986] 2 S.C.R. 272; State v. Anderson, 641 P.2d 728 (1982); R. v. Laurier (1983), 1 O.A.C. 128; R. v. Geddes (1979), 52 C.C.C. (2d) 230; R. v. Waite (1980), 57 C.C.C. (2d) 34; R. v. MacDonald (1939), 72 C.C.C. 182; R. v. Butterwasser, [1948] 1 K.B. 4; R. v. Danson (1982), 66 C.C.C. (2d) 369.

 

By McIntyre J.

 

                   Referred to: R. v. Wray, [1971] S.C.R. 272; R. v. Stratton (1978), 42 C.C.C. (2d) 449.

 

By La Forest J. (dissenting)

 

                   R. v. Stratton (1978), 42 C.C.C. (2d) 449; R. v. Wray, [1971] S.C.R. 272; R. v. Jarosz (1982), 3 C.R.R. 333; R. v. Grosse (1983), 9 C.C.C. (3d) 465; R. v. Kulba (1986), 27 C.C.C. (3d) 349; Maxwell v. Director of Public Prosecutions, [1935] A.C. 309; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Brown (1978), 38 C.C.C. (2d) 339; R. v. D'Aoust (1902), 5 C.C.C. 407; R. v. Fushtor (1946), 85 C.C.C. 283; R. v. Powell (1977), 37 C.C.C. (2d) 117; R. v. Skehan (1978), 39 C.C.C. (2d) 196; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; State v. Anderson, 641 P.2d 728 (1982); R. v. Lane and Ross (1969), 6 C.R.N.S. 273; Luck v. United States, 348 F.2d 763 (1965); Selvey v. Director of Public Prosecutions, [1970] A.C. 304; R. v. Sang, [1980] A.C. 402; R. v. Tretter (1974), 18 C.C.C. (2d) 82; R. v. Leforte (1961), 131 C.C.C. 169; Morris v. The Queen, [1979] 1 S.C.R. 405; Kuruma v. The Queen, [1955] A.C. 197; Noor Mohamed v. The King, [1949] A.C. 182; Harris v. Director of Public Prosecutions, [1952] A.C. 694; Gordon v. United States, 383 F.2d 936 (1967); R. v. Watts (1983), 77 Cr. App. R. 126; R. v. Powell (1985), 82 Cr. App. R. 165; R. v. Burke (1985), 82 Cr. App. R. 156; R. v. Jenkins (1945), 31 Cr. App. R. 1; R. v. Cook (1959), 43 Cr. App. R. 138; United States v. Brown, 409 F. Supp. 890 (1976).

 

Statutes and Regulations Cited

 

Act for amending the Law of Evidence and Practice on Criminal Trials (U.K.), 28 & 29 Vict., c. 18, s. 6.

 

Act for amending the Law of Evidence in certain Cases (U.K.), 9 Geo. 4, c. 32, s. 4.

 

Act for improving the Law of Evidence (U.K.), 6 & 7 Vict., c. 85, s. 1.

 

Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law, S.C. 1869, c. 29, s. 65.

 

Canada Evidence Act , 1893, S.C. 1893, c. 31, s. 4.

 

Canada Evidence Act, R.S.C. 1906, c. 145, s. 12.

 

Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 12 .

 

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), (f), 24(1) .

 

Common Law Procedure Act, 1854 (U.K.), 17 & 18 Vict., c. 125, s. 25.

 

Criminal Code , 1892, S.C. 1892, c. 29, s. 695.

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 613(2)(b), 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18], 643.

 

Criminal Evidence Act, 1898 (U.K.), 61 & 62 Vict., c. 36, s. 1(f).

 

Authors Cited

 

Canada. Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswells, 1982.

 

Canada. Law Reform Commission: Law of Evidence Project. Evidence. Ottawa: Law Reform Commission, 1972.

 

Doob, Anthony N. and Hershi M. Kirshenbaum. "Some Empirical Evidence on the Effect of s. 12  of the Canada Evidence Act  Upon an Accused" (1972‑73), 15 Crim. L.Q. 88.

 

Friedland, M. L. "Criminal Law ‑‑ Evidence ‑‑ Cross‑Examination on Previous Convictions in Canada ‑‑ Section 12  of the Canada Evidence Act " (1969), 47 Can. Bar Rev. 656.

 

Holdsworth, Sir William. A History of English Law, vol. I, 7th ed. London: Methuen & Co., 1956.

 

Lawson, Robert G. "Credibility and Character: A Different Look at an Interminable Problem" (1975), 50 Notre Dame Lawyer 758.

 

McCormick, Charles T. Evidence, 2nd ed. By Edward W. Clearly. St‑Paul, Minn.: West Publishing Co., 1972.

 

Ratushny, Edward. Self‑Incrimination in the Canadian Criminal Process. Toronto: Carswells, 1979.

 

Saltzburg, Stephen A. and Kenneth R. Redden. Federal Rules of Evidence Manual, 4th ed. Charlottesville, Va.: Michie Co., 1986.

 

Schiff, Stanley A. Evidence in the Litigation Process, vol. 1, 2nd ed. Toronto: Carswells, 1983.

 

Teed, Eric. "The Effect of s. 12  of the Canada Evidence Act  upon an Accused" (1970‑71), 13 Crim. L.Q. 70.

 

Weinberg, M. S. "The Judicial Discretion to Exclude Relevant Evidence" (1975), 21 McGill L.J. 1.

 

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 1A. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.

 

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.

 

Wissler, Roselle L. and Michael J. Saks. "On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt" (1985), 9 Law and Human Behavior 37.

 

Wright, Cecil A. "Evidence ‑‑ Credibility of Witness ‑‑ Cross‑Examination as to Previous Conviction" (1940), 18 Can. Bar Rev. 808.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1984), 17 C.C.C. (3d) 129, 13 C.R.R. 250, 43 C.R. (3d) 193, dismissing the accused's appeal from his conviction of second degree murder. Appeal dismissed, La Forest J. dissenting.

 

                   Kenneth G. Young and Rosemary L. Nash, for the appellant.

 

                   John E. Hall, Q.C., and Sharon E. Kenny, for the respondent.

 

                   S. R. Fainstein and D. J. Avison, for the inter­vener the Attorney General of Canada.

 

                   Howard F. Morton and Michael A. MacDonald, for the intervener the Attorney General for Ontario.

 

                   Jacques Gauvin, for the intervener the Attorney General of Quebec.

 

                   William Henkel, Q.C., for the intervener the Attorney General for Alberta.

 

                   The reasons of Dickson C.J. and Lamer J. were delivered by

 

1.                       The Chief Justice‑‑

 

                                                                     I

 

2.                       The appellant, Lawrence Wilburn Corbett, was charged with the first degree murder of Réal Pinsonneault at the city of Vancouver. He was convicted of second degree murder and sentenced to life imprisonment with an order that he serve twenty years before being eligible for parole. He appealed to the British Columbia Court of Appeal and his appeal was dismissed, Hutcheon J.A. dissenting: (1984), 17 C.C.C. (3d) 129. Corbett now appeals to this Court as of right pursuant to s. 618(1) (a) of the Criminal Code  on the following ground, which formed the basis of Hutcheon J.A.'s dissent:

 

Whether or not, by reason of the provisions of the "Charter of Rights ", Section 11 (d), the provisions of the Canada Evidence Act, Section 12  have any application whatever to an accused person with a prior conviction for murder who gives evidence at his trial on a charge of murder.

 

3.                       Section 11 (d) of the Canadian Charter of Rights and Freedoms  and s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E‑10, read as follows:

 

                   11. Any person charged with an offence has the right

 

                                                                    ...

 

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

                   12. (1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.

 

                   (2) The conviction may be proved by producing

 

(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if for an offence punishable upon summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if upon indictment, was had, or to which the conviction, if summary, was returned; and

 

(b) proof of identity.

 

4.                       The issue is whether Corbett was deprived of his right to a fair hearing by reason of the introduction of evidence of his earlier conviction for non‑capital murder.

 

                                                                    II

 

The Constitutional Questions

 

5.                       The following two constitutional questions were set for determination in this appeal:

 

1.                Whether section 12(1) of the Canada Evidence Act  is inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms  to the extent that s. 12(1)  applies to a person charged with an offence?

 

2.                If there is such an inconsistency, does s. 1  of the Canadian Charter of Rights and Freedoms  save s. 12(1)  of the Canada Evidence Act  from being declared of no force and effect to the extent of the inconsistency?

 

6.                       The Attorneys General of Canada, Alberta, Ontario and Quebec intervened to support the constitutional validity of s. 12(1) .

 

7.                       In his reasons, which I have had the advantage of reading, my colleague, La Forest J. finds that apart from the Charter , a trial judge has a discretion to refuse to permit cross‑examination of an accused on his prior criminal record, and that in the present case, the trial judge should have exercised his discretion in favour of the accused Corbett. This conclusion being sufficient to dispose of the appeal, it became unnecessary for La Forest J. to deal with the Charter  issue in depth. I agree with La Forest J. that there is a discretion to exclude evidence of prior convictions of an accused. However, as I take a different view as to the manner in which the trial judge's discretion should have been exercised, it will be necessary for me to deal with the constitutional validity of s. 12  of the Canada Evidence Act .

 

                                                                   III

 

Facts

 

8.                       Corbett was charged with the first‑degree murder of Réal Pinsonneault, who was shot and killed in Vancouver on December 2, 1982. Corbett and Pinsonneault were involved in the cocaine trade. Corbett was financing Pinsonneault in the purchase of illegal drugs. At the time of the killing, Pinsonneault owed Corbett $27,000. Corbett travelled from Victoria to Vancouver on December 1, 1982, the day before the murder, with a female companion, Colleen Allan. At the time, he was on parole from a life sentence imposed in 1971 after his conviction on a charge of non‑capital murder, upheld by this Court: Corbett v. The Queen, [1975] 2 S.C.R. 275. One of the conditions of his parole was that he had to stay within a 25‑mile radius of the city of Victoria unless he had permission to leave the area. He had no such permission. The purpose of Corbett's trip to Vancouver was to collect the money Pinsonneault owed him. Corbett and Allan registered in the Sands Motor Hotel under the assumed name of "Baxter". Corbett testified that the reason for using an assumed name was that his trip to Vancouver constituted a violation of his parole conditions.

 

9.                       Pinsonneault shared an apartment with Michèle Marcoux (also known as Smith) and Gilles Bergeron, a few blocks away from the Sands Motor Hotel. On the evening of December 1, 1982, Corbett and Allan had dinner at the hotel and after much drinking, a prolonged argument ensued in their hotel room. The hotel clerk called at 12:30 a.m. to complain about the noise. An occupant in the next room of the hotel testified that he heard Corbett leaving the room and that he heard Allan try to persuade Corbett to return. He then heard Allan make a telephone call asking the other party if she could come over.

 

10.                     The following facts are taken from the judgment of Craig J.A. (at p. 139):

 

Marcoux and Bergeron testified that about 1:30 a.m. on December 2, 1982, Allan whom they knew from their association with Corbett, came to their apartment. Allan had an injury or cut near one of her eyes. A few minutes later, Corbett arrived. Pinsonneault let him into the apartment. After saying something to Allan, Corbett told Pinsonneault and Bergeron to sit down. When Pinsonneault protested, Corbett took out a gun and fired several shots, killing Pinsonneault instantly and wounding Bergeron. Marcoux escaped from the apartment.

 

11.                     Colleen Allan was not called by the Crown at the trial but was presented for cross‑examination only. She had sworn at the preliminary hearing that neither she nor Corbett had left the hotel on the night in question. At the trial, however, she admitted that many of the statements she had made at the preliminary hearing, including that she had not seen the shooting of Pinsonneault, were untrue.

 

12.                     Bergeron had a serious criminal record. Marcoux also had a criminal record, although less serious than that of Bergeron. In the stories they gave to the police shortly after the shooting of Pinsonneault, neither Bergeron nor Marcoux identified Corbett as Pinsonneault's killer. At trial, Corbett's counsel forcefully cross‑examined both witnesses, whom he later described in his address to the jury as "unmitigated liars". Both witnesses admitted their criminal records during examination‑in‑chief by Crown counsel.

 

13.                     Before calling any evidence, Corbett's counsel sought a ruling that if the accused were called, s. 12  of the Canada Evidence Act  would not apply to him because of s. 11 (d) of the Charter  and therefore that Corbett could not be cross‑examined as to his prior criminal record. The trial judge ruled against Corbett on this issue, following the decision of the British Columbia Supreme Court in R. v. Jarosz (1982), 3 C.R.R. 333. The accused was then called and in order "to soften the blow" his own counsel put to him his criminal record which Corbett admitted. The record is as follows:

 

April 23, 1954 ‑‑    armed robbery, receiving stolen property, breaking and entering and theft (four counts)

 

May 12, 1954 ‑‑ escaping custody

 

December 6, 1954 ‑‑ theft of auto and breaking and entering

 

November 8, 1971 ‑‑ non‑capital murder

 

14.                     In his evidence, Corbett denied shooting Pinsonneault and swore that he only left his hotel room once during the night to get some liquor and cigarettes from his car, the hotel clerk having testified that he had let Corbett back into the hotel at 3:10 a.m.

 

15.                     In charging the jury, the trial judge stated as follows with regard to the relevance of Corbett's criminal record:

 

                   There was evidence tendered by the Accused that he was previously convicted of a number of Criminal Code  offences, including the offence of non‑capital murder, which conviction was registered on November 8, 1971. Evidence of previous convictions is admissible only in respect to the credibility of the witness. It can only be used to assess the credibility of the Accused and for no other purpose. Because the Accused was previously convicted of murder, it must not be used by you, the Jury, as evidence to prove that the Accused person committed the murder of which he stands charged. You, the Jury, must not take the person's previous convictions into account in your deliberations when determining whether the Crown has proven beyond a reasonable doubt that the Accused committed the murder with which he is charged.

 

This warning could hardly have been more explicit. Then, later in his direction, the trial judge reiterated his earlier instruction:

 

Once again, Mr. Foreman and Members of the jury, I tell you that that type of evidence only goes to credibility, that is his previous criminal record.

 

The trial judge returned to the matter a third time and stated as follows:

 

I have already told you that you must not use the criminal record of the Accused for any purpose other than credibility. You must not, under any circumstances, come to the conclusion that, because he has a criminal record, he would be more inclined or predisposed to commit this particular offence.

 

16.                     The case clearly turned on credibility and on whether the jury believed Bergeron and Marcoux or the accused. After deliberating for some 27 hours, the jury returned a verdict of guilty of second degree murder.

 

                                                                   IV

 

British Columbia Court of Appeal

 

17.                     Before the British Columbia Court of Appeal, the appellant relied on three grounds: the trial judge erred (i) in failing to hold that s. 12(1)  of the Canada Evidence Act  contravenes ss. 7  and 11 (d) of the Charter ; (ii) in failing to direct the jury properly on the theory of the defence and in failing to relate the evidence of witnesses generally to the theory; and, (iii) in failing to grant the request of counsel for the appellant that the jury be polled after the verdict. Leave to appeal to this Court on the second ground was refused, and leave was not sought on the third ground. We are concerned only with the first ground, the only ground upon which there was a dissent in the Court of Appeal.

 

18.                     Craig J.A. delivered lengthy reasons in which he carefully reviewed the evidence and dealt with all three issues relied upon by the appellant. With reference to the Charter  argument, Craig J.A. identified its thrust as being that the jury would improperly use evidence of prior convictions and that rather than use such evidence only in assessing the credibility of the accused as a witness, would draw the inference that the accused was the sort of person who was likely to have committed the offence in question. His Lordship rejected this argument and specifically disagreed, at p. 145,

 

with the suggestion that, generally, or invariably, the trier of fact uses evidence of previous convictions of the accused as evidence of his guilt of the crime charged, rather than using it solely to assess his credibility and with the suggestion that jurors, psychologically, are incapable of heeding the warning that they must use this evidence solely on the issue of credibility.

 

19.                     Craig J.A. observed that in many cases, juries do acquit despite the existence of a prior record which indicates that jurors do heed the warning. He went on to observe that limiting the right of the Crown to examine the accused could create a serious imbalance in a case such as the present one where the accused had launched an attack on the credibility of Crown witnesses on the basis of their prior criminal records. Craig J.A. concluded as follows (at p. 146):

 

It would be unfair, particularly in a case such as this, to allow the case to go to the jury on the basis that the principal Crown witnesses should not be believed because they have criminal records, but that the accused should be believed because he does not, apparently, have a criminal record, although, in fact, he may have a criminal record.

 

20.                     Seaton J.A. concurred with Craig J.A. Seaton J.A. considered at length American decisions which establish that an accused who testifies on his own behalf in a criminal case assumes the position of an ordinary witness and is subject to being discredited on cross‑examination as to prior convictions. Seaton J.A. also reviewed the English legislation which permits such cross‑examination in certain circumstances, and noted that in the light of defence counsel's cross‑examination of Crown witnesses, Crown counsel would have been justified in cross‑examining the accused on his record under the English provision. Seaton J.A. concluded that the accused was not, in those circumstances, entitled to conceal his record from the jury.

 

21.                     Hutcheon J.A., dissenting, emphasized the difference between the situation in Canada and England, namely, that under the English legislation and practice, use of prior convictions is limited and a trial judge has a discretion to refuse to permit such cross‑examination where there is a serious risk that introduction of prior convictions would prejudice the jury against the accused. Hutcheon J.A. noted that the weight of authority in Canada was against the existence of any such discretion. He also noted that s. 12  had been criticized in the literature and concluded with respect to the various articles and studies as follows (at p. 161): "To the extent the matter has been studied, one can say that evidence of a previous conviction for the same offence unduly prejudices an accused and that the instruction from the trial judge does nothing to remove that prejudice." Hutcheon J.A. contended that the probative value of a prior murder conviction in relation to credibility was minimal whereas it created a substantial risk of undue prejudice. In the end, he concluded that the result produced by s. 12  was inconsistent with the accused's right to a fair hearing and that while it was impossible to deny that there was a strong case against the accused, his conviction for the same offence "might have been the last ounce which turned the scales against him."

 

                                                                    V

 

Purpose and Effect of the Canada Evidence Act, s. 12 

 

22.                     The history of the Canada Evidence Act, s. 12  and its predecessors is set out in La Forest J.'s reasons and in the judgment of Martin J.A. in R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.) Cross‑examination of an accused with respect to prior convictions has been permitted in Canada since an accused first became competent to testify on his own behalf in 1893: R. v. D'Aoust (1902), 5 C.C.C. 407 (Ont. C.A.) What lies behind s. 12  is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility.

 

23.                     This rationale for s. 12  has been explicit in the case law. See, e.g., R. v. Stratton, supra, at p. 461, per Martin J.A., "Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, as evidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness."

 

24.                     Similarly, in R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342, per Martin J.A., "The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness."

 

25.                     An American court identified the rationale behind a similar rule in the following language:

 

What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. 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, as in the case at bar, though the violations are not concerned solely with crimes involving "dishonesty and false statement."

 

(State v. Duke, 123 A.2d 745 (N.H. 1956), at p. 746; quoted with approval in State v. Ruzicka, 570 P.2d 1208 (Wash. 1977), at p. 1212).

 

Charter of Rights  and Freedoms

 

26.                     It is contended, however, that permitting the Crown to cross‑examine an accused on his prior criminal record violates the right guaranteed by the Charter , s. 11 (d):

 

                   11. Any person charged with an offence has the right

 

                                                                    ...

 

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

27.                     It should be noted at the outset that, strictly speaking, the accused's prior criminal record did not come before the jury as a result of being cross‑examined pursuant to s. 12  of the Canada Evidence Act . Counsel for the accused chose to introduce the record in examination‑in‑chief in order "to soften the blow". In my view, La Forest J. is correct in holding that this should not preclude the accused from challenging the validity of s. 12 . Counsel for the accused only elected to lead evidence of the accused's prior record after the trial judge had rejected his application for a ruling that the accused's criminal record could not be introduced by the prosecution in cross‑examination. Faced with the choice between introducing the record himself or having it exposed, as it inevitably would have been, by Crown counsel, counsel for the accused decided that his client's interests would be better served if he himself presented the potentially damaging evidence. While this was held fatal to any recourse under the Charter  to challenge s. 12  in R. v. Grosse (1983), 9 C.C.C. (3d) 465 (N.S.S.C. App. Div.), it should not, in my view, prevent the accused from presenting the Charter  argument. But for s. 12 , the prior criminal record of the accused would not have been put before the jury. The accused should not be deprived of the right to challenge the constitutional validity of the provision simply because of his attempt to minimize the impact it would have.

 

28.                     Does section 12 of the Canada Evidence Act  violate the guarantee contained in s. 11(d) of the Char­ter? Clearly section 12 creates no presumption of guilt nor does it deprive the accused of the right "to be presumed innocent until proven guilty". The effect of the section is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused. It remains, however, to consider whether it can be said that the effect of s. 12  is to deprive the accused of a "fair" trial in the sense that the introduction of such evidence would divert the jury from the task of deciding the case on the basis of admissible evidence legally relevant to the proof of the charge faced by the accused.

 

29.                     The essence of the Charter  argument is that in light of the evidentiary rules restricting the admissibility of similar fact evidence and evidence relating to bad character, evidence of prior convictions against an accused person would ordinarily be inadmissible. Section 12  purports to make such evidence admissible on the issue of credibility only, but it is contended that the trier of fact will be incapable of restricting the use of such evidence to the issue of credibility. It is argued that permitting cross‑examination on prior convictions unfairly prejudices an accused in the sense that it presents the trier of fact with evidence, not otherwise admissible, which the trier of fact will inevitably take into account not only on the issue of credibility but also on the ultimate issue of guilt or innocence. It is argued that when presented with such information, the jury will inevitably tend to conclude that the accused is a person of bad character or a person who has a propensity to commit criminal offences and hence draw an inference it is not legally entitled to draw.

 

30.                     It is the case that apart from its relevance to credibility, evidence of prior convictions would be inadmissible unless it met one of the exceptions to the general exclusion of similar fact evidence. Such evidence does not constitute proof that the accused committed the offence for which he is now being tried: Makin v. Attorney‑General for New South Wales, [1894] A.C. 57, at p. 65; Koufis v. The King, [1941] S.C.R. 481; R. v. Stratton, supra, at p. 461. It is also well‑established that the trial judge is under a duty in cases where the accused has been cross‑examined as to prior convictions to instruct the jury as to the limited permissible use it can make of such evidence: R. v. Stratton, supra; R. v. Fushtor (1946), 85 C.C.C. 283 (Sask. C.A.); R. v. Bodnarchuk (1949), 94 C.C.C. 279 (Man. C.A.)

 

31.                     It is argued, however, that even if prior convictions do bear to some extent upon credibility, the jury simply cannot be trusted with the information as, even if a clear instruction is given, the jury cannot avoid falling into the error of convicting the accused on the basis that he is a person who has a propensity to offend. Such a conclusion would run counter to the well‑established exclusionary rules relating to similar fact evidence and evidence of bad character. The issue to be faced, therefore, is whether the risk that the jury will use the evidence of prior convictions for an improper purpose is so great that Parliament is not entitled to provide, as it has in s. 12  of the Canada Evidence Act , that a witness, specifically in this case an accused, may be cross‑examined as to prior criminal convictions.

 

32.                     Every reported decision that discusses the relationship between s. 12(1)  of the Canada Evidence Act  and s. 11 (d) of the Charter  has concluded that s. 12(1)  does not infringe the rights guaranteed in s. 11 (d). In R. v. Grosse, supra, the Nova Scotia Supreme Court, Appeal Division, held that the Charter  did not apply on the facts of that case because of the problem of retrospectivity. However, Morrison J.A., who wrote the Court's unanimous decision, did deal with the merits of the Charter  argument and concluded as follows, at p. 473:

 

. . . I do not think that the provisions of s. 12  of the Canada Evidence Act  offends the guarantee of the presumption of innocence until proven guilty by a fair and impartial tribunal in s. 11 (d) of the Canadian Charter of Rights and Freedoms . In this respect the jury was properly instructed on the limited use of evidence as to the prior criminal record of the accused. The learned trial judge carefully pointed out to the jury that the existence of a prior criminal record could only be used by the jury in considering the credibility of the witness. This is the standard direction given to a jury when dealing with this type of evidence.

 

33.                     In R. v. Kulba (1986), 27 C.C.C. (3d) 349 (leave to appeal to the Supreme Court of Canada refused, [1986] 2 S.C.R. vii), the Manitoba Court of Appeal reached a similar conclusion. Similarly, in R. v. Jarosz, supra, Davies J. of the British Columbia Supreme Court concluded as follows, at p. 335:

 

However, in criminal, especially sexual cases, credibility is often critical. Both the Crown and the accused should have the ability to test the credibility of the witnesses within the limits of the law. That is the interpretation that has been placed on s. 12  of the Canada Evidence Act , and I find that the procedure does not offend the provisions of s. 11 (d). The accused's presumption of innocence still stands. In my view, if there is to be a change with respect to the examination of the accused person on his record, that change will have to be made by the Parliament of Canada.

 

34.                     It is my view that on the facts of the present case, a serious imbalance would have arisen had the jury not been apprised of Corbett's criminal record. Counsel for Corbett vigorously attacked the credibility of the Crown witnesses and much was made of the prior criminal records of Marcoux and Bergeron. What impression would the jury have had if Corbett had given his evidence under a regime whereby the Crown was precluded from bringing to the jury's attention the fact that Corbett had a serious criminal record? It would be impossible to explain to the jury that one set of rules applies to ordinary witnesses, while another applies to the accused, for the very fact of such an explanation would undermine the purpose of the exclusionary rule. Had Corbett's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. It cannot be the case that nothing short of this entirely misleading situation is required to satisfy the accused's right to a fair trial.

 

35.                     There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.

 

36.                     In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

 

37.                     The balance struck by the combination of the Canada Evidence Act, s. 12 , and the requirement for a clear direction from the judge is admirably summed up in the following passage from the judgment of Martin J.A. in R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 441‑42:

 

                   An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack. If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross‑examination with respect to discreditable conduct and associations.

 

                   If an accused could in every case be cross‑examined with a view to showing that he is a professional criminal under the guise of an attack upon his credibility as a witness it would be virtually impossible for him to receive a fair trial on the specific charge upon which he is being tried. It is not realistic to assume that, ordinarily, the jury will be able to limit the effect of such a cross‑examination to the issue of credibility in arriving at a verdict.

 

                   In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross‑examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other.

 

38.                     One can now add on the accused's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12  would undermine the right to a fair trial.

 

39.                     In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark.

 

40.                     It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill‑adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently been underscored by s. 11 (f) of the Charter . If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge. Yet it is just this holding that is urged upon this Court by the appellant, for it is only this holding that can justify the conclusion that when s. 12(1)  of the Canada Evidence Act  is employed against an accused, the section infringes the accused's right to a "fair hearing".

 

41.                     The dissent in the Court of Appeal of British Columbia relied heavily upon two sociological studies which purported to demonstrate that jurors are incapable of distinguishing between evidence that goes to guilt and evidence that goes to credibility. Those studies have been analyzed with great sophistication by the intervener, the Attorney General of Canada, and the scientific method of the studies has been cast into doubt. Moreover, the Attorney General of Canada refers to other sociological and psychological studies that call into question the conclusions of the data relied upon by Hutcheon J.A. in dissent. It is not possible to undertake a complete analysis of all these studies for the purposes of this judgment, but the conflicting results and the inherent limitations of such investigations should cause the Court to be wary of relying upon the data adduced by the appellant before the Court of Appeal.

 

42.                     We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, "for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense" (Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 349).

 

43.                     To root the discussion firmly in the soil of common sense, I would simply quote the words of Seaton J.A. in the Court of Appeal (at p. 138):

 

                   Here the witnesses for the Crown were cross‑examined regarding their previous convictions and the trial judge warned the jury about believing such people. The cross‑examination was conducted and the warning given because a previous record is generally thought to indicate a person whose evidence should not be accepted too quickly. Experience has shown such people not to be reliable. The appellant wants the benefit of all that, but he wants us to hide from the jury that he is much the same as the other witnesses. Maybe worse. I do not think that he is entitled to that. It is not an essential ingredient in a fair trial.

 

44.                     There are many situations where the jury is permitted to hear and use evidence relevant to one issue, but not to another. In these situations, all that is required is a clear direction to the jury indicating what is permissible use and what is not.

 

45.                     For example, in some cases, similar fact evidence is admissible to show some particular trait or design. At the same time, however, the jury must be told that it is not permissible simply to conclude that the accused has a general propensity to do evil from which the inference can be drawn that he or she committed the particular offence charged: Makin v. Attorney‑General for New South Wales, supra.

 

46.                     In the joint trial of the co‑accused, the confession of one accused is admissible against that accused only, and the jury must be instructed that such evidence cannot be taken into account in determining the guilt of the co‑accused. See, e.g., Schmidt v. The King, [1945] S.C.R. 438, at p. 439; R. v. Rudd (1948), 32 Cr. App. R. 138 (C.C.A.); and R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), where Addy J. stated as follows, at p. 279:

 

                   I feel that it is quite possible, as has been done in many cases in the past, to explain clearly to the jury, in such a way that they will govern themselves in accordance with the directions of the Judge, that the confession of one accused in a joint trial is not evidence against his co‑accused. The danger of a miscarriage of justice clearly exists and must be taken into account but, on the other hand, I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries, and what has been regarded for centuries as a bulwark of our democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion.

 

47.                     Proof of a prior inconsistent statement by a witness is only relevant to the credibility of the witness and not as proof of the facts given in the prior statement and the jury must be so told: Deacon v. The King, [1947] S.C.R. 531; R. v. Mannion, [1986] 2 S.C.R. 272, at p. 278, per McIntyre J.

 

48.                     If risk that the jury might misuse evidence were enough to render such evidence inadmissible in all cases, then in each of the situations just identified, the evidence would have to be excluded. Yet the risk of error inherent in depriving the jury of such information is so strong that the balance is struck by allowing the evidence to be received, subject to the trial judge's discretion, but at the same time insisting on a careful direction from the trial judge as to the permissible conclusion or inferences which may be drawn. As it was put in an American decision (State v. Anderson, 641 P.2d 728 (Wash. Ct. App. 1982), at p. 731, per Durham J.), "If we are to continue in our belief that a trial by a jury of 12 peers offers the fairest determination of guilt or innocence, then we must credit the jury with the intelligence and conscience to consider evidence of prior convictions only to impeach the credibility of the defendant if it is so instructed." Similarly, in State v. Ruzicka, supra, at p. 1214, Hamilton J. stated: "We are not convinced that juries either cannot or wilfully do not follow the court's instructions to use evidence of a defendant's prior criminal record only in weighing the defendant's veracity on the witness stand."

 

49.                     It is worth noting as well that it would be quite wrong to view this aspect of s. 12  and evidence in relation to prior convictions in isolation. Judicial decisions have carefully circumscribed the extent to which the Crown may use prior convictions. It has been held, for example, that the accused may be examined only as to the fact of the conviction itself and not concerning the conduct which led to that conviction: R. v. Stratton, supra, at p. 467; R. v. Laurier (1983), 1 O.A.C. 128; Koufis v. The King, supra. Similarly, it has been held that an accused cannot be cross‑examined as to whether he testified on the prior occasion when convicted in order to show that he is one who was not believed by a jury on a previous occasion: R. v. Geddes (1979), 52 C.C.C. (2d) 230 (Man. C.A.) The Crown is not entitled to go beyond prior convictions to cross‑examine an accused as to discreditable conduct or association with disreputable individuals to attack his credibility: R. v. Waite (1980), 57 C.C.C. (2d) 34 (N.S.S.C. App. Div.), at pp. 45‑46; R. v. Davison, DeRosie and MacArthur, supra, at p. 444; R. v. MacDonald (1939), 72 C.C.C. 182 (Ont. C.A.), at p. 197. Unless the accused takes the stand, the Crown is not permitted to adduce evidence of prior convictions, even if the accused has launched an attack on the character of Crown witnesses: R. v. Butterwasser, [1948] 1 K.B. 4 (C.C.A.) It has been held that an accused may be cross‑examined only as to "convictions" strictly construed and that there can be no cross‑examination where the accused was found guilty and granted a conditional discharge, conditions subsequently having been fulfilled: R. v. Danson (1982), 66 C.C.C. (2d) 369 (Ont. C.A.)

 

50.                     These limitations on the use of prior convictions, together with the discretion recognized by the reasons of La Forest J., demonstrate a marked solicitude for the right of the accused to a fair trial and indicate that the law relating to the use of prior convictions strives to avoid the risk of preju­dicing an accused's trial by introduction of evidence of prior misdeeds. Taken as a whole, this body of law is entirely protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question. Within this context, it cannot be said that s. 12  of the Canada Evidence Act  operates in such a way as to deprive the accused of the right to a fair trial.

 

                                                                   VII

 

Does a Trial Judge have the Discretion to Preclude Cross‑examinations as to Prior Convictions?

 

51.                     I agree with my colleague, La Forest J., that basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever‑increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion.

 

52.                     I agree with La Forest J. that the trial judge has a discretion to exclude prejudicial evidence of previous convictions in an appropriate case.

 

53.                     However, I respectfully disagree with my colleague La Forest J. that this discretion should have been exercised in favour of the appellant in the circumstances of the present case. In his reasons, La Forest J. provides a useful catalogue of factors to which reference may be had in determining how this discretion is to be exercised. In my view, however, my colleague gives too little weight to the fact that in this case, the accused appellant made a deliberate attack on the credibility of Crown witnesses, largely based upon their prior records. The issue for the jury was solely that of credibility. As La Forest J. observes, this evidence would not have been excluded under the more comprehensive scheme of the governing English statute. In my view, excluding evidence of Corbett's prior criminal record would have created a serious imbalance. Had Corbett's record been excluded, the jury, as I have earlier indicated, would have been left with the entirely mistaken impression that while the Crown witnesses were hardened criminals, Corbett had an unblemished record. The problem could not be solved, in my view, by admitting into evidence all the convictions, save that for murder. Apart from the murder conviction in 1971, the earlier convictions dated back over thirty years to 1954. I am not all persuaded that the imbalance between the Crown and accused would have been avoided by admitting only evidence of convictions for offences committed in the accused's youth. It is my view, therefore, that the jury would have been misled rather than aided by the exclusion of the evidence, and that in the circumstances it cannot be said that admission of the evidence was unfairly prejudicial.

 

                                                                   IX

 

Conclusion

 

54.                     I would dismiss the appeal and answer the constitutional questions in the manner following:

 

Question 1   Section 12(1)  of the Canada Evidence Act  is not inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms .

 

Question 2   In light of the answer to question 1, question 2 need not be answered.

 

                   The following are the reasons delivered by

 

55.                     Beetz J.‑‑I concur with the Chief Justice.

 

56.                     However, I wish to add the following observation.

 

57.                     In my view, s. 12(1) of the Canada Evidence Act, R.S.C. 1970, c. E‑10, would not conform with ss. 7  and 11 (d) of the Canadian Charter of Rights and Freedoms  unless it be construed as leaving room for the trial judge's discretion to disallow the cross‑examination of an accused as to prior convictions if the convictions are of tenuous probative value in assessing credibility and their disclosure would be highly prejudicial to the accused.

 

                   The reasons of McIntyre and Le Dain JJ. were delivered by

 

58.                     McIntyre J.‑‑I have read the reasons for judgment prepared in this appeal by my colleagues, Dickson C.J. and La Forest J. I am in agreement with the result which has been proposed by the Chief Justice and in general agreement with his reasons, subject to the qualification which follows. I do not agree that a trial judge has a discretion, in the face of the clear words of s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E‑10, to exclude questions by Crown counsel as to past criminal convictions of an accused who gives evidence at his trial.

 

59.                     Both the Chief Justice and La Forest J. found that s. 12(1)  of the Canada Evidence Act  does not offend s. 11 (d) of the Canadian Charter of Rights and Freedoms . I agree with this conclusion. While the Chief Justice agreed with La Forest J. that there is "a discretion to exclude prejudicial evidence of previous convictions in an appropriate case", his finding that s. 12(1)  does not infringe the Charter  guarantee in s. 11 (d) is abundantly supported in his reasons independently of the existence of such a discretion and on that basis I adopt them.

 

60.                     There is no reference in the terms of s. 12(1) , or any part of the Canada Evidence Act , which would relate to s. 12 , to a judicial discretion to relieve against the application of that section. Neither subs. (1) nor subs. (2) of s. 12  contains any mention of a judicial discretion in its application and, indeed, specific permission to put such questions, coupled with specific power to prove the fact of past convictions in the event of denial, would clearly override any such discretion if it had existed. The only support for the existence of such a discretion in the jurisprudence of this Court is found in R. v. Wray, [1971] S.C.R. 272, which recognizes a discretion to exclude otherwise admissible evidence where it would operate unfairly to the accused, and which is of little probative value but of serious prejudicial effect. The doctrine of parliamentary supremacy leaves no room, in the absence of a Charter  infringement, for unauthorized judicial intervention in such a case, and there is no doctrine known to the law which affords a court the authority to elevate a general common law discretionary power to the level of an amendment to a specific and clear provision, such as s. 12  of the Canada Evidence Act , which gives unequivocal permission to Crown counsel to put the questions and gives no power to a trial judge to exclude them: see R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.)

 

61.                     Whatever discretion may have existed to permit a trial judge to exclude admissible evidence at common law, on no basis of authority or principle could such a discretion have empowered a court to exclude questions to a witness as to past convictions in the face of the clear words of s. 12(1)  of the Canada Evidence Act , a legislative provision specifically found not to be inconsistent with the Charter . To admit such a discretion would be tantamount to holding that Parliament could not by clear legislative enactment alter the common law. I would dispose of the appeal as proposed by the Chief Justice.

 

                   The following are the reasons delivered by

 

62.                     La Forest J. (dissenting)‑‑The appellant, Lawrence Wilburn Corbett, seeks to have his conviction of second degree murder of one Réal Pinsonneault set aside. The principal ground of appeal is that evidence of a highly prejudicial previous conviction of non‑capital murder should not have been admitted into evidence.

 

63.                     Section 12 of the Canada Evidence Act, R.S.C. 1970, c. E‑10, as amended, permits the admission into evidence of the fact of a witness' previous convictions; such evidence is thought to be relevant to a witness' credibility. However, the appellant contends that s. 12, certainly as it has thus far been interpreted, is inconsistent with ss. 11 (d) and 7  of the Canadian Charter of Rights and Freedoms  to the extent that s. 12  applies to a person charged with an offence. Under section 11(d), a person is "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal" (emphasis added). Again section 7 accords everyone "the right to ... liberty ... and the right not to be deprived thereof except in accordance with the principles of fundamental justice". These provisions, the appellant asserts, guarantee him a fair trial free from prejudice.

 

64.                     As noted the alleged unfairness specifically addressed on behalf of the appellant was the admission into evidence of the fact of his conviction of non‑capital murder which, on the prevailing interpretation of s. 12 originally adopted in R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.), the trial judge had no discretion to exclude. The conceptual underpinnings of Stratton, the argument continued, were removed by the Charter  and so s. 12  was rendered of no force or effect by the Charter , or, at the very least, should now be so read as to import a discretion in the trial judge to exclude evidence, with the result that the previous conviction of non‑capital murder, should in the present case not have been disclosed to the jury. This exclusion, he argued, was necessary to ensure the appellant of his right accorded by the Charter  to a fair trial by an impartial tribunal, or as his counsel put it, "free from prejudice".

 

65.                     Since I have concluded, independently of the Charter , that s. 12  of the Canada Evidence Act  should not be read as denying a trial judge the discretion he had at common law to exclude certain prejudicial evidence, the Charter  arguments lose much of their cogency. I shall, therefore, largely concentrate on the existence and extent of the trial judge's discretion respecting evidence submitted pursuant to s. 12 , although I shall have something to say of the effect of the Charter  on that provision as I have interpreted it.

 

The Facts and the Trial

 

66.                     There are many disputed facts in this case, but the essentials may be stated as follows. The appellant was indicted on January 24, 1983 of first degree murder in respect of the death of Réal Pinsonneault, an associate of his in the drug trade, who was shot and killed on December 2, 1982, in Vancouver, British Columbia. At the time of Pinsonneault's death, the appellant was on parole from a sentence of life imprisonment for non‑capital murder, of which he had been convicted in 1971.

 

67.                     The appellant was then living in Victoria, British Columbia with his girlfriend Colleen Allan. Under the terms of his parole, he was not to leave the immediate area of Victoria without permission. However, without obtaining such permission, he and Allan went to Vancouver on the afternoon of December 1, 1982 and registered at the Sands Motor Hotel under an assumed name. His explanation for this was that they had decided to go shopping on short notice and he had "some problems here". He used an assumed name, he said, because he had not obtained permission to leave Victoria.

 

68.                     After a dinner in the motel restaurant and much drinking, the two, it would appear, returned to their room where they engaged in a noisy and prolonged argument during the course of which Mrs. Allan's eye was injured. At 12:30 a.m. the desk clerk telephoned their room complaining about the noise. One of the occupants of an adjoining room testified that he had heard a man and woman having a loud argument. He then heard a noise which he assumed to be a woman leaving the room, running towards the elevator and then returning to the room. A few minutes later, he assumed the man had left the room because he heard the woman calling him to return.

 

69.                     The appellant testified that following the quarrel, they finally went to bed, but he could not sleep and he finally got up, shortly before 3 a.m., and went to his car in the parking lot to get cigarettes and liquor. During his examination‑in‑chief, he said the clerk had let him out and let him in the hotel, but during cross‑examination he seemed to suggest that he had left by a fire exit door but re‑entered by the front door when the clerk let him in. The clerk testified that he had locked the door but it was possible for anyone to leave through the various fire exit doors. He further testified that he had let the appellant in the front door at about 3 a.m.

 

70.                     We come now to the critical evidence for the Crown, that of Michèle Marcoux (Mrs. Smith) and Gilles Bergeron. The victim, Réal Pinsonneault, and Marcoux lived in an apartment at 1355 Bute Street in Vancouver, several blocks from the Sands Motor Hotel. Gilles Bergeron lived with them. Like Pinsonneault, Bergeron had a serious criminal record; Marcoux also had a criminal record, though it was less serious. Both admitted to these at trial.

 

71.                     At trial, Marcoux testified as follows. At about 1:30 a.m. on December 2, 1982, Allan, whom she knew from her association with the appellant, came to their apartment. A few minutes later, Bergeron arrived home. Shortly afterwards, the doorbell rang. Pinsonneault answered it and let the appellant into the apartment. The appellant told Pinsonneault and Bergeron to sit down as he had to speak to them. He sounded angry. When Pinsonneault objected, the appellant took out a gun without warning and fired several shots, killing Pinsonneault instantly and wounding Bergeron. Marcoux escaped from the apartment. Bergeron's testimony substantially corroborated that of Marcoux.

 

72.                     Both these witnesses had, however, originally given a different account of the facts. A few minutes after the shooting, Marcoux had hysterically told a police officer that a woman, whom she did not identify, had come to the apartment and that shortly thereafter a man had entered the apartment and had shot Pinsonneault and Berge­ron. Her description of the assailant did not conform to that of the appellant. It was not until 6:30 a.m. that she gave a statement to the police that was consistent with her testimony at trial. Neither of the officers to whom she was said to have made this statement was called by the Crown to testify.

 

73.                     As for Bergeron, he had on a number of occasions during interviews by several police officers on December 2 and 3, reiterated that he had not seen "anything" but the flash of a gun. Nor did he on any of these occasions identify the man who had done the shooting, although he knew the appellant. At trial, Bergeron testified that he had lied on these occasions but that, at 5:13 p.m., on December 7, 1982 ‑‑ some five days after the event ‑‑ he had given a truthful version of his story to an officer who, as in the case of Marcoux, was not called by the Crown.

 

74.                     There was some further evidence of what transpired at 1355 Bute Street, but it was both limited and inconclusive. A resident of an adjoining house testified that he had been awakened by the creaking noise of a gate giving access to 1355 Bute Street in the morning hours of December 2 and shortly afterwards heard sounds ‑‑ obviously the gunshots. He then saw a man and woman leaving 1355 Bute, but he could not identify them beyond saying that the man wore a light coloured jacket, and the woman, jeans and a maroon ski jacket. However, as the judge in reviewing the evidence reminded the jury, the clothing the woman was said to have been wearing did not appear to match those worn by Allan that night.

 

75.                     The Crown had called Colleen Allan as a witness at the preliminary hearing but did not examine her in chief at the trial, calling her only to afford defence counsel the opportunity to cross‑examine her. At the preliminary hearing, Mrs. Allan had given an account of the events that generally supported that of the appellant and, among other matters, stated that neither of them had left the hotel during the evening or the early hours of December 2. At the trial, defence counsel confined his cross‑examination almost entirely to Allan's testimony at the preliminary hearing. However, Allan then testified that while many of her answers at the preliminary hearing were true, many were not, including her answers that neither she nor the appellant had left the hotel that evening, that she had never been at 1355 Bute Street and that she had not seen the shooting of Pinsonneault.

 

76.                     Besides admitting that she had lied at the preliminary hearing, Allan also acknowledged that she was presently charged with trafficking in cocaine as well as with importing narcotics into Canada. In his charge to the jury respecting her testimony, the trial judge, Callaghan J., stated:

 

She acknowledged that, if found guilty of importing, she could be sentenced to a minimum of seven years in the penitentiary. She expressed the opinion to Defence Counsel that she did not think the police would charge her with perjury as a result of the evidence that she gave at this hearing. The inference drawn by Defence Counsel from that evidence is that if she cooperates with the authorities now, the authorities may very well go easier with her.

 

77.                     The appellant's defence, as we saw, was essentially one of alibi but he also sought to establish an absence of motive for the crime by attempting to establish that his relationship with Pinsonneault and Bergeron was one of "banker" in drug transactions and that Pinsonneault owed him some $30,000. He said he had made arrangements to see Pinsonneault but had not gone to Bute Street in the early hours of December 2 and had not killed Pinsonneault.

 

78.                     It will be obvious from the foregoing recitation that credibility is a crucial factor in this case, one not made simpler by the unsavoury character of the principal witnesses and of the appellant. Defence counsel sought to make use of this factor in dealing with the Crown's case. In his address to the jury, he described Marcoux and Bergeron as "unmitigated liars" and said that the jury should give no credence to their testimony. He also suggested that the jury should carefully consider whether to give any effect to Allan's testimony as she was a self‑confessed perjurer and was also facing at least two drug charges.

 

79.                     However, the appellant's character also raised problems for the defence. Since defence counsel intended to have the appellant testify, he sought at the conclusion of the case for the Crown to prevent the Crown cross‑examining the appellant on his previous record under s. 12  of the Canada Evidence Act  by submitting that to permit this would contravene the Charter . Permitting cross‑examination of previous convictions of an accused, as opposed to an ordinary witness, was highly prejudicial. In particular, counsel maintained that to permit cross‑examination and proof of the appellant's previous conviction of non‑capital murder was so highly prejudicial that it would infringe on his Charter  right to a fair trial. He further submitted that in the circumstances of the present case the trial judge could, under s. 24(1) of the Char­ter, refuse to permit such cross‑examination. The trial judge, following R. v. Jarosz (1982), 3 C.R.R. 333, a decision of another judge of the Supreme Court of British Columbia, rejected this argument. (It may be observed that the argument has also been rejected in R. v. Grosse (1983), 9 C.C.C. (3d) 465 (N.S.S.C. App. Div.), and R. v. Kulba (1986), 27 C.C.C. (3d) 349 (Man. C.A.))

 

80.                     In his opening address to the jury, counsel for the appellant stated that he would be leading evidence of the appellant's record in chief in order to "soften the blow". The appellant subsequently testified as one of the defence witnesses, at which time he admitted the following record of convictions:

 

April 23, 1954 ‑‑    armed robbery, receiving stolen property, breaking and entering and theft (four counts)

May 12, 1954 ‑‑ escaping custody

December 6, 1954 ‑‑ theft of auto and breaking

                             and entering

November 8, 1971 ‑‑ non‑capital murder

 

81.                     During his instructions to the jury, the trial judge directed the jury that the evidence of the appellant's past convictions could be used only to assess his credibility and for no other purpose. He went on:

 

Because the Accused was previously convicted of murder, it must not be used by you, the Jury, as evidence to prove that the Accused person committed the murder of which he stands charged. You, the Jury, must not take the person's previous convictions into account in your deliberation when determining whether the Crown has proven beyond a reasonable doubt that the Accused committed the murder with which he is charged.

 

82.                     The jury retired to deliberate at 2:42 p.m., April 20, 1983, and continued their deliberations the next day. Interestingly at 5:50 p.m. on that day, they asked the trial judge to go over reasonable doubt again. Following these further instructions they retired and returned a verdict of guilty on the charge of second degree murder at 6:15 p.m., April 21, 1983. When asked by the trial judge whether they wished to make any recommendation regarding sentencing, the jury recommended that the accused serve the minimum sentence of 10 years before becoming eligible for parole.

 

The Court of Appeal Judgments

 

83.                     An appeal to the British Columbia Court of Appeal was dismissed by majority (Seaton and Craig JJ.A., Hutcheon J.A. dissenting): (1984), 17 C.C.C. (3d) 129. In view of the arguments put before them, the opinions of these judges were largely directed at the Charter  arguments, although they are also relevant in dealing with the interpretation of s. 12  of the Canada Evidence Act .

 

84.                     The majority concluded that s. 12  was not inconsistent with ss. 7  and 11 (d) of the Charter . Craig J.A., with whom Seaton J.A. was "in general agreement", first dealt with appellant counsel's argument that a trial is not impartial within the meaning of these provisions if the tribunal is aware of the convictions because the tribunal tends to use the evidence of previous convictions not to test his credibility but as evidence that he committed the crime charged. To this, Craig J.A. observed that the possibility that the trier of fact might, consciously or unconsciously, give undue weight to previous convictions rather than considering them solely on the issue of credibility was a factor defence counsel must consider in determining whether to advise the accused to testify. He conceded that the trier of fact may in a particular case use the evidence of previous convictions for something more than determining credibility, but added (at pp. 145‑46):

 

... I disagree with the suggestion that, generally, or invariably, the trier of fact uses evidence of previous convictions of the accused as evidence of his guilt of the crime charged, rather than using it solely to assess his credibility and with the suggestion that jurors, psychologically, are incapable of heeding the warning that they must use this evidence solely on the issue of credibility. The results of many cases establish that jurors do heed the warning regarding the limited use which they may make of previous convictions. The importance of credibility varies from case to case, ranging from relatively unimportant to crucial. In this case, it was crucial. Previous convictions can be very important factors in assessing credibility.

 

85.                     Craig J.A. then dealt with the appellant's contention that it was permissible to cross‑examine Crown witnesses on a previous criminal record, but that it was unfair to permit this when the accused was a witness because of the possibility that the jury might regard his record as evidence that he probably committed the crime charged. Craig J.A. thought that the argument put the concept of "fairness" too narrowly. He stated that "[f]airness is a relative term and involves a consideration of the interests of the State as well as ... the accused" (p. 146). In his view, "[i]t would be unfair, particularly in a case such as this, to allow a case to go to the jury on the basis that the principal Crown witnesses should not be believed because they have criminal records, but that the accused should be believed because he does not, apparently, have a criminal record, although, in fact, he may have a criminal record" (p. 146).

 

86.                     Seaton J.A. put the latter point even more forcefully (at p. 138):

 

                   Here the witnesses for the Crown were cross‑examined regarding their previous convictions and the trial judge warned the jury about believing such people. The cross‑examination was conducted and the warning given because a previous record is generally thought to indicate a person whose evidence should not be accepted too quickly. Experience has shown such people not to be reliable. The appellant wants the benefit of all that, but he wants us to hide from the jury that he is much the same as the other witnesses. Maybe worse. I do not think that he is entitled to that. It is not an essential ingredient in a fair trial.

 

87.                     For the reasons above summarized, Craig J.A. came to the following general conclusion (at pp. 146‑47):

 

Having regard to the importance of credibility and the importance that previous convictions may have on this issue, I think that s. 12(1)  of the Canada Evidence Act  is not inconsistent with s. 7  and s. 11 (d) of the Charter  even accepting the possibility that in a specific case the jury may tend to use the previous convictions of the accused for something more than merely assessing his credibility.

 

88.                     Both judges, and particularly Seaton J.A., also relied on English procedure, which in their view would also have permitted cross‑examination of the accused. The dissenting judge, Hutcheon J.A. disagreed, noting that an overriding discretion to exclude such evidence in the interests of securing a fair trial subsisted in England.

 

89.                     Hutcheon J.A. would have ordered a new trial since he was of the view that, in its application to the accused in the circumstances of the case, s. 12  conflicted impermissibly with the accused's Char­ter right to a fair hearing. In his view, the "fair hearing" to which the accused has a right under s. 11 (d) of the Charter  is one which, among other things, is "free from prejudice". He observed that the Ontario Court of Appeal had recognized the special risk to an accused who testified on his own behalf of having his previous convictions proved against him for the purpose of affecting his credibility, thereby incidentally prejudicing his position with the jury in regard to the charge then on trial.

 

90.                     Hutcheon J.A. then noted that he had not found one commentator who did not acknowledge this undue prejudice. These commentators (many of whom will be mentioned later) as well as empirical research all supported the notion that the introduction of evidence concerning previous convictions increases the likelihood of conviction, and that instructions to the jury to disregard the evidence will not counteract the "halo" effect of the previous convictions. This was especially true when the offences revealed were similar to the one alleged to have been committed by an accused.

 

91.                     He concluded that the prevalent interpretation of s. 12  was inconsistent with the accused's Char­ter rights, that the prejudice to the accused from the introduction into evidence of his previous conviction for non‑capital murder was undue, real and certain, and that the instruction to the jury, in all likelihood, did nothing to remove that prejudice. He stated (at p. 161):

 

                   The probative value of the evidence of a prior conviction for murder as it bears on credibility is slight; its admission, however, creates substantial danger of undue prejudice. If the trial judge had a discretion to admit the evidence, it would have been an error to do so.

 

The latter point, he observed, had no application to witnesses who were not on trial.

 

92.                     Hutcheon J.A.'s concern (which I observe was the principal issue raised by appellant's counsel throughout) was with the admission of the previous murder conviction. To the suggestion that the appellant's testimony would have an unmerited aura of veracity unless his previous conviction of murder was admitted in evidence, he responded that any such aura would be removed by the evidence of other previous convictions and other evidence. He stated (at p. 162):

 

To the extent that his prior convictions in 1954 for armed robbery, breaking and entering and theft of a motor vehicle, remote as they were, bore on veracity, that was conveyed to the jury by the evidence of those prior convictions. To the extent that the commission of an unknown crime could affect credibility, that was conveyed to the jury by Corbett's evidence that he used a false name in registering at the motel because he was in breach of probation by his visit to Vancouver.

 

Hutcheon J.A. then concluded as follows:

 

                   If credibility is the sole function of the evidence of a prior conviction there was little, if anything, to be added by the evidence of the prior conviction for murder. What may have been added was evidence of bad character that unfairly prejudiced the accused.

 

93.                     Then, having drawn attention to the jury's request after considerable deliberation to have the judge "go over reasonable doubt again", before finding the appellant guilty of second degree murder, Hutcheon J.A. continued by paraphrasing Sankey L.C.'s comment in Maxwell v. Director of Public Prosecutions, [1935] A.C. 309, at p. 323, that while "it is impossible to deny that the evidence was strong against the accused; it might well be that the fact that he had been convicted some years before of a similar offence might have been the last ounce which turned the scales against him".

 

94.                     In Hutcheon J.A.'s view, therefore, s. 12  should not by reason of the Charter  be so interpreted as to permit the admission into evidence of the appellant's previous conviction for non‑capital murder. Such admission would in his view be inconsistent with the appellant's right to a fair hearing under s. 11 (d) of the Charter .

 

The Appeal to This Court

 

95.                     On January 18, 1985, notice of appeal to this Court was filed pursuant to s. 618(1) (a) of the Criminal Code . The following constitutional questions were then stated:

 

1.                Whether section 12(1) of the Canada Evidence Act  is inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms  to the extent that s. 12(1)  applies to a person charged with an offence?

 

2.                If there is such an inconsistency, does s. 1  of the Canadian Charter of Rights and Freedoms  save s. 12(1)  of the Canada Evidence Act  from being declared of no force and effect to the extent of the inconsistency?

 

Notice of the constitutional questions was served upon the Attorney General of Canada and the Attorneys General of the provinces. The Attorneys General of Canada, Ontario, Quebec and Alberta intervened in support of the constitutionality of s. 12 .

 

Preliminary Issue

 

96.                     Section 12(1)  of the Canada Evidence Act  reads as follows:

 

                   12. (1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.

 

Section 12(2) simply provides for the manner in which a conviction may be proved and requires no further attention here.

 

97.                     As can be seen, s. 12  relates to the proof of previous convictions on cross‑examination rather than in chief. Functionally, however, it was solely because of the trial judge's ruling that s. 12  was constitutionally valid and that it permitted proof of the convictions that reference to these convictions was made in chief, to "soften the blow" as defence counsel put it. I do not think this changes anything. The tactics of defence counsel were a direct response to this ruling, and if the ruling was incorrect the appellant is entitled to have the error remedied.

 

General Principles

 

98.                     As is true with respect to the resolution of most, if not all, issues relating to the law of evidence, resort must be had, first and foremost, to its animating or first principles, for it is only with reference to these that the more specific rules of evidence can be understood and evaluated. Failure to so reference discussion often results in the unhappy divorce of legal reasoning from common sense, with the consequence that rules of evidence are apt to be viewed as both self‑sustaining and self‑justifying. The present case further illustrates that statutory rules of evidence must also be interpreted in light of these guiding principles.

 

99.                     The organizing principles of the law of evidence may be simply stated. All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy. Questions of relevancy and exclusion are, of course, matters for the trial judge, but over the years many specific exclusionary rules have been developed for the guidance of the trial judge, so much so that the law of evidence may superficially appear to consist simply of a series of exceptions to the rules of admissibility, with exceptions to the exceptions, and their sub‑exceptions.

 

100.                   The basic principles were recently re‑affirmed in Morris v. The Queen, [1983] 2 S.C.R. 190 (the "1983 Morris case"), where Lamer J., on this point speaking for a unanimous Court, stated, at p. 201:

 

                   Thayer's [Thayer, A preliminary treatise on evidence at the common law, at p. 530] statement of the law which is still the law in Canada, was as follows:

 

(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.

 

To this general statement should be added the discretionary power judges exercise to exclude logically relevant evidence

 

... as being of too slight a significance, or as having too conjectural and remote a connection; others, as being dangerous, in their effect on the jury, and likely to be misused or overestimated by that body; others, as being impolitic, or unsafe on public grounds; others, on the bare ground of precedent. It is this sort of thing, as I said before, ‑‑ the rejection on one or another practical ground, of what is really probative, ‑‑ which is the characteristic thing in the law of evidence; stamping it as the child of the jury system. (Thayer, at p. 266.)

 

                   It was through the exercise of this discretionary power that judges developed rules of exclusion. As said Thayer, at p. 265, when speaking of the rule of general admissibility of what is logically probative:

 

... in an historical sense it has not been the fundamental thing, to which the different exclusions were exceptions. What has taken place, in fact, is the shutting out by the judges of one and another thing from time to time; and so, gradually, the recognition of this exclusion under a rule. These rules of exclusion have had their exceptions; and so the law has come into the shape of a set of primary rules of exclusion; and then a set of exceptions to these rules.

 

101.                   It should be noted that this passage followed a general discussion of the concept of relevance in which the Court affirmed that no minimum probative value is required for evidence to be deemed relevant. The Court made it clear that relevance does not involve considerations of sufficiency of probative value, and that, as McIntyre J. stated, at p. 192, "admissibility of evidence must not be confused with weight". A cardinal principle of our law of evidence, then, is that any matter that has any tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to the overriding judicial discretion to exclude such matter for the practical and policy reasons already identified. Also important, especially in the context of the present case, is the Court's recognition that the present rules of exclusion are but specific accretions or manifestations of a subsisting general judicial discretion to exclude, on practical or policy grounds, that which is admittedly relevant. More will be said about this below, for it is these general considerations that must inform the interpretation of s. 12 .

 

The Historical Background of s. 12 

 

102.                   Until the 19th century, many who were in a position to give relevant evidence were legally incompetent to act as witnesses in legal proceedings. Among those incompetent to testify at a criminal trial were persons who had been convicted of infamous crimes, persons having a pecuniary or proprietary interest in the outcome of the proceedings, as well as the parties to the proceedings and their spouses. Although many of these persons could be expected to give evidence which was relevant to matters in issue ‑‑ indeed, in the case of accused persons, highly relevant ‑‑ it was reasoned that it would be imprudent to allow them to testify because their evidence would not have been credible in light of their bad character as evidenced by their previous convictions, or their vested interest in the outcome of the trial.

 

103.                   In the early 19th century, however, the United Kingdom enacted legislation to remove these common law restrictions on competence. Acts passed in 1828 (An Act for amending the Law of Evidence in certain Cases (U.K.), 9 Geo. 4, c. 32, s. 4) and 1843 (An Act for improving the Law of Evidence (U.K.), 6 & 7 Vict., c. 85, s. 1) provided that a person was not incompetent to testify by reason only of interest or crime. Parties and their spouses, however, were specifically denied competence by the latter Act. A criminal past thenceforth became, at most, a factor that could affect the credibility of a witness but could not preclude receipt of his testimony.

 

104.                   I say "at most" because it was for a long time by no means clear that a witness' credibility could be attacked by adducing evidence of previous convictions. The problem was twofold. First, it was doubtful that a witness could be asked or made to answer any questions that tended to disgrace him. Second, even if such questions could be put, if the allegation was denied or no answer given it would appear that the fact of the previous conviction could not be proved, because this would have violated the proscription against collateral evidence (Friedland, "Criminal Law ‑‑ Evidence ‑‑ Cross‑Examination on Previous Convictions in Canada ‑‑ Section 12  of the Canada Evidence Act " (1969), 47 Can. Bar Rev. 656, at p. 660; R. v. Stratton, supra, at pp. 459‑60, per Martin J.A.)

 

105.                   It is important to note, however, that the restrictions on such questioning were quite specific in origin, and did not arise because such matters were viewed as irrelevant to credibility. Quite the contrary. These obstacles to the introduction of previous convictions to impeach a witness' credibility were specifically removed in England in civil cases in 1854 (The Common Law Procedure Act, 1854 (U.K.), 17 & 18 Vict., c. 125, s. 25) and in criminal cases in 1865 (An Act for amending the Law of Evidence and Practice on Criminal Trials (U.K.), 28 & 29 Vict., c. 18, s. 6). These Acts specifically provided that if a witness refused to answer such questions or denied having previous convictions, the fact of these convictions could be affirmatively proved. The rationale for allowing the introduction of such evidence appears to have been based on a belief that persons who have in the past committed crimes are generally not creditworthy and ought not to be trusted to tell the truth. As Wigmore put it:

 

                   The argument for the use of bad general character to discredit a witness is, in brief, that it necessarily involves an impairment of the truth‑telling capacity, that to show general moral degeneration is to show an inevitable degeneration in veracity, and that the former is often more easily betrayed to observation than is the latter.

 

(Wigmore on Evidence (Chadbourn Rev. 1970), vol. 3A, § 922, at p. 726.)

 

The Acts referred to above, to my mind, clearly evidence a legislative judgment that the policy of the common law that had rendered convicted persons incompetent was to be retained, but in the form of a set of rules that would permit the reception of such persons' testimony while nevertheless subjecting their credibility to scrutiny.

 

106.                   To complete the historical picture, one need only note that legislation essentially similar to the English Act of 1865 was enacted in Canada in 1869 (An Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law, S.C. 1869, c. 29, s. 65). It later became s. 695 of the 1892 Criminal Code  and, ultimately, s. 12 of the Canada Evidence Act, R.S.C. 1906, c. 145.

 

107.                   The foregoing discussion relates to the forerunners of s. 12 and their application vis‑à‑vis ordinary, non‑party witnesses. Significantly, neither the 1865 legislation in the United Kingdom nor the 1869 legislation in Canada could apply to accused persons qua witnesses because such persons were not generally competent to testify in the United Kingdom until 1898 (Criminal Evidence Act, 1898 (U.K.), 61 & 62 Vict., c. 36, s. 1), and in Canada until 1893 (The Canada Evidence Act, S.C. 1893, c. 31, s. 4).

 

Section 12 and Relevancy

 

108.                   The policy embodied in these Acts is clearly that a wide range of crimes is relevant to the capacity for truthfulness of potential witnesses, extending beyond criminal activity specifically implicating elements of dishonesty or creditworthiness. As the Advisory Committee on the United States' Federal Rules of Evidence stated:

 

                   While it may be argued that considerations of relevancy should limit provable convictions to those of crimes of untruthfulness, acts are constituted major crimes because they entail substantial injury to and disregard of the rights of other persons or the public. A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony.

 

(Federal Rules of Evidence Manual (4th ed. 1986), at p. 557.)

 

109.                   Some, however, dispute this conclusion and contend that evidence of previous convictions that do not involve dishonesty is not relevant to credibility and ought not, therefore, to be admissible into evidence because this would either violate the Charter  or, Charter  apart, the basic principles of law of evidence. Wigmore (op. cit., § 926) is perhaps the most notable proponent of the view that such an approach violates the fundamental principles of evidence law. In his view, only crimes relevant to show a lack of truthfulness should be used ‑‑ for example, forgery, cheating and the like. A similar view has been taken in Canada by the Federal/Provincial Task Force in its Report on Uniform Rules of Evidence (1982), at para. 26.11, at p. 345.

 

110.                   It is crucial to recognize, however, although this might not be a complete answer to the foregoing, that both Wigmore and the Task Force were employing definitions of relevancy denoting "something more than a minimum of probative value" (Wigmore on Evidence (Tillers Rev. 1983), vol. 1A, § 28, at p. 969), and this may well have had some weight with them in arriving at their conclusions regarding relevancy. However that may be, this Court, as I remarked earlier, unanimously repudiated this view of relevancy in the 1983 Morris case, supra.

 

111.                   Nonetheless, the issue raises Charter  concerns. These receive some support from recent empirical studies that suggest, albeit inconclusively, that whether or not a person tells the truth as he perceives it is a function primarily of the specific context or situation, and not of past conduct, or that, at best, only convictions for crimes involving a lack of veracity are relevant (in the Thayerian sense) to credibility: see, e.g., Lawson, "Credibility and Character: A Different Look at an Interminable Problem" (1975), 50 Notre Dame Lawyer 758, at pp. 783‑89; Doob and Kirshenbaum, "Some Empirical Evidence on the Effect of s. 12  of the Canada Evidence Act  Upon an Accused" (1972‑73), 15 Crim. L.Q. 88; see also the discussion in Schiff, Evidence in the Litigation Process (2nd ed. 1983), vol. 1, at p. 544.

 

112.                   I am not convinced, however, that it would be correct to consider such evidence to be generally or definitionally irrelevant. As I observed earlier, at the stage of the threshold inquiry into relevancy, basic principles of the law of evidence embody an inclusionary policy, namely, that any item of evidence which, as a matter of common sense, logic and human experience, has any tendency to prove a fact in issue ought, prima facie, to be admitted to assist in the discovery of truth because the cumulative effect of such evidence may be sufficient to prove a fact in issue. McCormick, in proposing a similar test for relevancy which asks whether the item of evidence renders the desired inference "more probable than it would be" without that item, aptly observed that "[a] brick is not a wall" (Evidence (2nd ed. 1972), at pp. 436‑37).

 

113.                   As I have said, the forerunners of s. 12 , and indeed s. 12  itself, by rendering admissible into evidence all previous convictions for the purpose of affecting a witness' credibility (for what other purpose could such evidence legitimately serve?), necessarily embody a legislative judgment that such evidence is relevant to credibility. In the absence of cogent evidence establishing that evidence of previous convictions is irrelevant for that purpose, the fact that reasonable people may disagree about its relevance merely attests to the fact that unanimity in matters of common sense and human experience is unattainable.

 

114.                   More importantly, I would suggest that the better approach would be to err in favour of inclusion. Such doubts would have their place when considering the weight or probative value that should be ascribed to such evidence, for it has never been suggested that all previous convictions bear equally on a witness' credibility. As Martin J.A. stated in R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342:

 

The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness. Obviously, convictions for offences involving dishonesty or false statements have a greater bearing on the question whether a witness is or is not likely to be truthful, than convictions for offences such as dangerous driving or assault. The probative value of prior convictions with respect to the personal trustworthiness of the witness also varies according to the number of prior convictions and their proximity or remoteness to the time when the witness gives evidence. A jury might well be justified in concluding that a conviction, even for a serious offence committed many years before, was of little if any value in relation to the credibility of a witness if he had since that time lived an honest life.

 

115.                   Finally, as we shall see, a salutary judicial discretion exists to ensure that this otherwise relevant and admissible evidence will be excluded where the interests of justice so require.

 

Section 12  and the Accused as Witness

 

116.                   Once an accused was made competent to testify in his own defence it was soon accepted that his position qua witness was, for the purposes of what is now s. 12 , generally assimilated to that of an ordinary witness. In R. v. D'Aoust (1902), 5 C.C.C. 407 (Ont. C.A.), Osler J.A. stated, at pp. 411 and 412‑13:

 

                   The right, and if such it can be called, the privilege, of the accused now is to tender himself as a witness. When he does so he puts himself forward as a credible person, and except in so far as he may be shielded by some statutory protection, he is in the same situation as any other witness, as regards liability to and extent of cross‑examination.

 

                                                                    ...

 

[An accused person] incurs the risk if he chooses to testify on his own behalf of having such convictions proved against him for the purpose of affecting his credit, and thereby incidentally of prejudicing his position with the jury in regard to the charge then on trial ‑‑ a risk which, by the Imperial Act, it has been deemed proper to exclude.

 

117.                   It is, I think, self‑evident that if previous convictions are viewed as relevant and prima facie admissible with respect to an ordinary witness' credibility, they are no less so with respect to an accused who testifies in his own defence, for he is thereby asking the jury to accept his word. This, however, is where the parallel ends. As Osler J.A. observed, the introduction of such evidence carries with it the potential for incidentally prejudicing the accused's position with the jury respecting the merits of the case. This is so because the evidence might be accepted as tending to prove not merely lack of credibility, but that the accused is a `bad' person and therefore possessed of a propensity or disposition to commit any kind of crime, including that of which he is charged. This concern was addressed by the appellant at length and is a matter about which I shall have more to say later. The Imperial Act to which Osler J.A. referred, namely, the Criminal Evidence Act, 1898, will also be discussed below.

 

118.                   To mitigate against this risk of prejudice, the law came to require that the judge give a limiting instruction to the jury to the effect that while such evidence could be used to impeach the accused's credibility, it could not be used as proof of the accused's guilt: see, e.g., R. v. Fushtor (1946), 85 C.C.C. 283 (Sask. C.A.), at p. 354. Additionally, it was held that the trial judge may, and sometimes must, where appropriate, provide guidance to the jury respecting the tenuous probative value of some convictions in relation to credibility; see Brown and Stratton, supra.

 

119.                   A further protection against the potentially prejudicial effects of allowing previous convictions of the accused into evidence was introduced in R. v. Powell (1977), 37 C.C.C. (2d) 117 (Ont.) In that case, Misener Co. Ct. J. considered that prior to this Court's decision in R. v. Wray, [1971] S.C.R. 272, there existed a broad discretion in a trial judge to exclude evidence if its probative value was significantly outweighed by its potential prejudicial effect. Although he thought the generality of this discretion had been cut down by that decision, he believed that this restriction applied only to substantive issues and not to issues of credibility. At page 119, he set forth his reasons for this view as follows:

 

In my view, where the evidence tendered goes only to the credibility, there is a discretion in the interests of a fair trial, in other words, in the interests of ensuring that the accused is judged on the substantive facts and that the accused is not put in the position of having evidence that relates only to credibility introduced which might well gravely prejudice him on the substantive issues. In my view, there is a discretion in the Court to exclude such evidence, which in this case takes the form, of course, of evidence of previous convictions. That kind of evidence does, in the minds of ordinary citizens, reflect upon the character of the accused. This proposition was recognized to the extent that such a proposition can be recognized by the Court in R. v. Tennant and Naccarato (1975), 23 C.C.C. (2d) 80, 7 O.R. (2d) 687, 31 C.R.N.S. 1. At p. 102 C.C.C., p. 25 C.R.N.S., the Court said that the prejudice occasioned by the fact that a criminal record reflects upon the character of the accused is in this day no longer a matter of serious conjecture. It seems to me therefore, that a discretion to exclude evidence that relates entirely to credibility, or is put forth entirely on the basis of credibility, still remains if the weight of the evidence with respect to the issue of credibility is tenuous and if the prejudicial effect to the accused on the substantive issue may well be very great.

 

This lead was followed by the Ontario High Court in R. v. Skehan (1978), 39 C.C.C. (2d) 196.

 

120.                   The recognition of a residual discretion to exclude such evidence was, however, short‑lived. Six months following Skehan, supra, the Ontario Court of Appeal, in Stratton, supra, held that there is no judicial discretion to exclude evidence rendered admissible by s. 12 . Martin J.A., who delivered the judgment of the court, noted that in D'Aoust, supra, s. 12  had been held to be applicable to accused persons, and pointed out that that case had never been challenged on this point. He also noted that this conclusion was consistent with the English position, for in enacting the Criminal Evidence Act, 1898, whereby the accused was rendered a competent witness, it had been felt necessary to safeguard an accused person from automatic disclosure of his criminal record.

 

121.                   Martin J.A. also recognized the danger that the jury may find it difficult to confine evidence of previous convictions to the issue of credibility and use it for the forbidden purpose of determining that the accused is a person likely from his criminal conduct to have committed the offence. However, he concluded that s. 12  did not admit of a discretion to exclude such evidence and disapproved of the contrary opinions expressed in Powell and Skehan, supra. Because I respectfully disagree with the learned judge's conclusion on this, the central issue in this appeal, the reasons for this conclusion will be subjected to closer scrutiny. It is first necessary, however, to look more carefully at the nature of the prejudice that s. 12  is said to occasion.

 

The Nature of the Prejudice

 

122.                   Simply put, the appellant's submissions are twofold: first, that the admission into evidence of an accused's previous convictions harbours the potential to prejudice profoundly the fairness of the accused's trial; and second, that some means (constitutional or otherwise) must exist to negate that potential.

 

123.                   For the reasons that follow, and in the face of a resoundingly uniform body of judicial and academic opinion, as well as empirical evidence to the effect that the section's actual or putative operation is capable of causing manifold prejudice to the interests of the accused (and, for that matter, of the public) in a fair trial, one cannot help but concede the force of the appellant's submissions regarding prejudice. By prejudice is meant, of course, that the acceptance of such evidence could operate unfairly and unjustly, and not merely unfortunately to the accused; see Wray, supra, per Martland J. at p. 293; Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.)

 

124.                   The most obvious way in which this prejudice manifests itself arises from the fact that the operation of s. 12  significantly, and often invidiously, circumvents the complex of rules that precludes, in general, the introduction by the Crown of evidence of an accused's "bad character", or disposition for criminal activity or discreditable acts not related to the charge. This proscription, described by Viscount Sankey L.C. in Maxwell v. Director of Public Prosecutions, supra, at p. 317, as "one of the most deeply rooted and jealously guarded principles of our criminal law", was expressed in the seminal case of Makin v. Attorney‑General for New South Wales, [1894] A.C. 57 (P.C.), as follows:

 

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

 

(Per Lord Herschell L.C., at p. 65.)

 

125.                   The rationale for this admonition, that an individual is to be tried not for the kind of person he may be but for the offence he may have committed, has been eloquently expressed by Karl Llewellyn in the following terms (quoted in Ratushny, Self‑Incrimination in the Canadian Criminal Process (1979), at p. 335):

 

Angel or devil, a man has a claim to a fair trial of his guilt. Angel or devil, he has a claim to a fair trial, not of his general social desirability, but of his guilt of the specific offense charged against him. Such is the letter of our law. Such also is our law's spirit. For letter and for spirit there is a reason. Law is administered by men. We do not trust men to be wholly wise, or wholly fair.... The job of court and jury is to see whether the suspect has committed the particular offense....

 

126.                   However, as Martin J.A. observed in Stratton, supra, by assimilating an accused to the position of an ordinary witness, s. 12  places the trier of fact in the unenviable position of entertaining at once two highly, and often impossibly dissonant trains of thought. As Ratushny points out, the trier of fact is entitled to infer that because the accused committed criminal acts in the past he or she is now more likely to lie, but that same trier of fact is not entitled to infer therefrom that the accused is also more likely to have committed the evil act for which he is now on trial (supra, at pp. 336‑37). Ironically, however, as a matter of logic and human experience which are, after all, our touchstones in the present inquiry, the probative value of such evidence to the latter question (of guilt) appears to be far more prepossessing.

 

127.                   This perception, as Hutcheon J.A. demonstrated in the Court of Appeal, is shared by academics, practitioners and judges alike; see, for example, Friedland, loc. cit., esp. at p. 658; Teed, "The Effect of s. 12  of the Canada Evidence Act  upon an Accused" (1970‑71), 13 Crim. L.Q. 70, esp. at pp. 75‑76. Indeed, with respect to evidence of crimes similar to that for which the accused is being tried, it is, to say the least, ironic that the carefully considered judicial criteria that require similar fact evidence to be rejected unless it reaches such a high level of probative value as to outweigh any prejudice that may arise from its admission, should, by virtue of s. 12 , automatically cease to obtain. This starkly highlights the fact that the prejudice explicitly recognized by the law does not cease to obtain merely because of the accused's decision to testify.

 

128.                   I agree with Professor Friedland, loc. cit., that the law's sedulously fostered position, that the character of an accused may not be considered unless he first raises the issue or unless the Crown meets the criteria of similar fact evidence, ought not easily yield to what a Law Reform Commission of Canada paper has described as "the fallacy [in s. 12 ] that it is rational to treat the accused like an ordinary non‑party witness" (Evidence (1972), Study Paper No. 3: "Credibility", at p. 8). Furthermore, I think it self‑evident that the law cannot profess to learn from common sense and experience and yet selectively ignore such lessons. I also think it significant that I have not unearthed any academic or empirical evidence tending to undermine these observations. Indeed, quite the contrary is true; see Wissler and Saks, "On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt" (1985), 9 Law and Human Behavior 37; Ratushny, op. cit.; Friedland, loc. cit.

 

129.                   Nor, in my opinion, ought the law simply to assert away this problem by reflexively invoking the virtues of the jury system, and in particular the time‑honoured and obviously practical and necessary assumption that jurors are eminently capable of following a judge's limiting instructions respecting the uses to which evidence may be put, as seems to be done in some cases; see, for example, State v. Anderson, 641 P.2d 728 (Wash. Ct. App. 1982); R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), at p. 279. These cases, indeed, appear to suggest that to acknowledge the problem somehow undermines the justification for the jury system.

 

130.                   It seems to me that it is specious to say that to recognize what we know from experience to be the limitations of the human reasoning process is simultaneously to discredit the general utility of the jury as an instrument of justice. Indeed, an appreciation of human limitations can only redound to the benefit of the system as a whole by ensuring that these are accounted for and protected against. We deceive ourselves if we expect the jury to reason in ways that we, as lawyers and judges, know from experience to be often unrealistic, if not impossible.

 

131.                   Other, clearly related ways in which such prejudice may manifest itself have also been suggested by Ratushny, op. cit., at pp. 340‑41, whose views on these matters are quite representative. First, the introduction of such evidence can prejudice the accused by effectively relaxing the standard of proof necessary for a finding of guilt. It is argued that a trier of fact might be less concerned about erroneously convicting a known criminal than a person with an unblemished past. As Ratushny observes, at p. 341, "[s]uch a result runs entirely contrary to the whole basis of our criminal process".

 

132.                   Ratushny, at p. 341, suggests compounding dangers, arising out of the fact that, not unnaturally, it is often the presence of previous convictions that lead police to suspect and charge a person in the first place, sometimes on tenuous grounds. Thus a "vicious circle" may ensue. A person is suspected and investigated because of his record and the existence of that record increases the likelihood of his conviction. Ratushny thus concludes, at p. 341:

 

                   The innocent accused who has a previous record is, therefore, caught in a cruel dilemma at his trial. Does he take the witness stand to offer his explanation, facing the likelihood that he will be convicted anyway because of his past misconduct? Or does he simply remain silent and permit adverse inferences to be drawn from his failure to offer an explanation even though he may well have such an explanation?

 

This latter observation suggests a different aspect of the prejudice argument, namely, the concern that s. 12  operates so as to result in the unequal ability of accused persons to conduct their defence, a concern also raised by the Law Reform Commission of Canada study paper already referred to (loc. cit., at p. 9); see also Wright, "Evidence ‑‑ Credibility of Witness ‑‑ Cross‑Examination as to Previous Conviction" (1940), 18 Can. Bar Rev. 808, at p. 810.

 

133.                   Finally, empirical evidence suggests that s. 12  does, indeed, operate so as unequally to affect the ability of accused persons to defend themselves, particularly when the previous convictions allowed into evidence are of crimes similar to that with which they are charged. The various studies are reviewed by Wissler and Saks, loc. cit., esp. at pp. 38‑39 and 43‑44. Moreover, Ratushny, at p. 341, refers to a survey indicating that in Canada accused persons will more frequently choose not to testify than in England, where cross‑examination on previous convictions is specifically restricted and subject to an overriding judicial discretion to avoid undue prejudice. However vulnerable to methodological or other criticism these results may be, I think it significant that these studies uniformly tend to support the appellant's contention that s. 12  is capable of operating prejudicially against an accused. Having satisfied myself that the risk of prejudice is by no means speculative or illusory, I now turn to the question whether s. 12  admits of a discretion in the trial judge to prevent such prejudice materializing.

 

The Holding in Stratton and the Discretion to Exclude

 

134.                   As I stated earlier, I find myself, with respect, unable to agree with the conclusion in Stratton, supra, that there is no discretion to exclude prejudicial evidence of previous convictions in an appropriate case, and I now propose to set forth the nature of this disagreement. On my reading of that case, it is readily apparent that Martin J.A. was of the view that in order to find such a discretion it was necessary that it be expressly conferred by s. 12  itself. He nowhere addressed the possibility that the discretion existed at common law and had not been extinguished by s. 12 . At page 461, the learned judge stated:

 

                   Central to the premise that the trial Judge has such a discretion is the interpretation of the provision in s. 12  that a witness "may" be questioned with respect to previous convictions as conferring a discretion on the Judge to disallow such questioning.

 

Having so characterized the issue, he concluded that the word "may" did not give an exclusionary discretion to the trial judge but merely referred to the prosecutorial discretion to adduce such evidence.

 

135.                   In reaching this conclusion, Martin J.A. rejected a line of American cases which had viewed the central question in ascertaining the effect of a similarly worded statute to be whether the statute "leaves room" for such a discretion. In Luck v. United States, 348 F.2d 763 (1965), McGowan, Circuit Judge, speaking for a majority of the Court of Appeals, District of Columbia Circuit, said, at pp. 767‑68:

 

Section 305 is not written in mandatory terms. It says, in effect, that the conviction "may", as opposed to "shall", be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. [Emphasis added.]

 

Martin J.A. preferred the dissenting opinion given by Danaher, Circuit Judge in that case to the effect that the provision was directed to prosecutorial discretion, not to the admission of evidence.

 

136.                   For my part, I respectfully favour the view of McGowan J. that the word "may" in the provision in that case, as well as in s. 12 , did not require the trial judge to admit all convictions, but rather left room for the exercise of a "sound judicial discretion" that existed independently of the statute. That discretion, we saw, exists at common law, being one of the fundamental postulates of the law of evidence. It is frequently identified with the Wray case, supra, where Cartwright C.J., albeit in dissent, observed that "[t]he discretionary power, if it exists, is not created by any statute but rests upon judicial decisions" (p. 281). This was obviously accepted by the majority of this Court, which concluded, albeit in obiter, that a general discretionary power to exclude prejudicial evidence did exist. That discretion is, in my view, so fundamental to the notion of a fair trial that, even apart from Charter  considerations, its statutory removal should not lightly be assumed. Section 12  contains no language indicating its removal and accordingly there is nothing to prevent its continuing subsistence.

 

137.                   It should be noted that the view in Luck, that the trial judge retains a discretion to exclude evidence of previous convictions where their probative value for impeachment purposes outweighs their prejudicial effect, was adopted in almost every Circuit (Federal Rules of Evidence Manual, op. cit, at p. 519), and was substantially incorporated into Rule 609(a) of the Federal Rules of Evidence, although that Rule represents, in the words of the Manual, "a compromise of sorts" in that while it retains the Luck rule, it allows no discretion where the crime of which he was convicted involved dishonesty or false statement.

 

138.                   The approach I suggest is also supported by the English position under s. 1(f) of the Criminal Evidence Act, 1898, which reads:

 

 

 

(f.)               A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless ‑‑

 

(i)                the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

 

(ii)               he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or

 

(iii)               he has given evidence against any other person charged with the same offence.

 

Martin J.A. also dealt with this provision. Citing the leading case of Selvey v. Director of Public Prosecutions, [1970] A.C. 304 (H.L.), he acknowledged that the English case law had affirmed the existence of a discretion to refuse to permit such cross‑examination notwithstanding that by the conduct of his defence the accused had triggered that section and thereby prima facie exposed himself to such questions. However, he did not find these authorities persuasive since they involved the construction of entirely different statutory provisions (p. 463). Parenthetically, it should be noted that Seaton J.A., in the Court of Appeal, appears to have overlooked these authorities in stating that had the English procedure been available in the present case, cross‑examination on the murder conviction would have been permitted.

 

139.                   Selvey makes it clear that the discretion exercised under s. 1(f) of the English Act is a general, subsisting one, not dependent in any way on that section for its continued existence. At page 346, Lord Hodson noted:

 

                   The respondent, on the other hand, has contended before your Lordships that the trial judge has no discretion whether to admit or exclude evidence. The words of the section are plain and define the circumstances in which the accused throws away his shield. His protection having ceased, the statute clearly provides that his record may be put to the accused. Where then, he asks, is there room for discretion to be exercised to prevent this being done? The answer is twofold. First, there is a long line of authority to support the opinion that there is such a discretion to be exercised under this subsection. In the second place, what is I think more significant, there is abundant authority that in criminal cases there is a discretion to exclude evidence, admissible in law, of which the prejudicial effect against the accused outweighs its probative value in the opinion of the trial judge. [Emphasis added.]

 

(See also pp. 339‑42 per Viscount Dilhorne, and pp. 351‑52 per Lord Guest.) Indeed, it is clear from s. 1 (f) itself that the question of a conferral of discretion could never have arisen in the context of that provision which, ex facie, is written in terms suggesting that such questioning is absolutely permissible once the statutory preconditions have been met. (See R. v. Sang, [1980] A.C. 402 (H.L.), at p. 447, per Lord Fraser.)

 

140.                   As I see it, then, the appropriate questions to be considered are not whether there is anything in the statute that creates a discretion, but rather (1) whether, as in England, Canadian trial judges are seized of this general discretion, and (2) if so, whether the section extinguishes or otherwise precludes its exercise.

 

141.                   With respect to the latter question, even though, as Martin J.A. holds, the word "may" allows for a prosecutorial discretion to put such questions, this, as I see it, does not end the matter. In my view, since a discretion to exclude otherwise relevant and admissible evidence exists at common law, the fact that the statute makes such evidence admissible in no way requires its reception in evidence.

 

142.                   Martin J.A. himself in R. v. Tretter (1974), 18 C.C.C. (2d) 82, reached the conclusion that such a discretionary right to exclude existed with respect to s. 643  of the Criminal Code , which is framed in terms similar to s. 12 . Section 643  provides that where certain conditions are met, the evidence of a "person whose evidence ... was taken ... upon the preliminary inquiry into the charge ... may be read as evidence in the proceedings . . . ." (emphasis added). While concluding that the word "may" did not confer a discretion on the trial judge to exclude the evidence made statutorily admissible, he specifically recognized that a general residuary discretion continued to operate. At page 89, he stated:

 

                   We are all of the opinion that when the conditions set out in s. 643  have been established that evidence taken at the preliminary hearing in the presence of the accused is admissible upon the application of either the prosecution or the defence and that the trial Judge has no discretion to exclude such evidence if it is otherwise relevant and admissible, subject, of course, to the limited discretion recognized in The Queen v. Wray, supra. [Emphasis added.]

 

In my respectful view, the minor change in phraseology in ss. 12  and 643  does not call for a different result.

 

143.                   A further point deserves mention. In Stratton, Martin J.A. relied upon the somewhat cryptic language in this Court's decision in R. v. Leforte (1961), 131 C.C.C. 169, which could be looked upon as supporting his position. That case is not mentioned in Tretter. At all events, I am satisfied that Leforte cannot be regarded as authority for the proposition that no discretion subsists under s. 12 . This Court was there simply affirming the dissenting opinion of Sheppard J.A. of the British Columbia Court of Appeal, in which the issue of discretion was not directly addressed, Sheppard J.A. being of the opinion that the evidence of the accused's guilt was, in any case, overwhelming. The Court briefly noted, at p. 170:

 

We are in complete agreement with the reasons of Sheppard J.A., except that it is unnecessary for us to deal with his finding that there had been no substantial wrong or miscarriage. It might be added, however, that on the point as to the admissibility of previous convictions of the respondent the decisions relied upon in the reasons of the majority of the Court of Appeal and referred to in argument before us are based upon a provision different from s. 12 of the Canada Evidence Act, R.S.C. 1952, c. 307.

 

Presumably, the Court was there referring to the English cases under s. 1(f) of the Criminal Evidence Act, 1898. I do not think, however, that the issue was either squarely addressed or decided by this Court in that case.

 

144.                   Indeed, in Morris v. The Queen, [1979] 1 S.C.R. 405, this Court seems to have considered the matter open. In that case, the principal issue was whether the accused could be questioned on his record as a juvenile delinquent. Pratte J. stated, at pp. 433‑34:

 

                   It is true that there is a theory according to which the trial judge would, under s. 12(1) , enjoy a discretion under which he could disallow questions about previous convictions that, in his considered opinion, would have no relevancy to the veracity character of the witness and would therefore not assist the jury in assessing his credibility, or possibly would have a probative value as to the credibility of the witness that would be vastly outweighed by the prejudice that it would raise against him: R. v. McLean (1940), 73 C.C.C. 310; see also Phipson, 12th ed., Nos. 1601 & 1605; R. v. Sweet‑Escott (1971), 55 C.A.R. 316.

 

                   I need not express my opinion as to the merit of this theory; it is sufficient to say that even if the trial judge has a discretion under which he may disallow questions about previous convictions, such discretion, whatever its scope, ought not, in my view, to be exercised so as to forbid cross‑examination which is aimed at eliciting from the witness some admissions that would tend to establish the lack of veracity of some portions of his examination‑in‑chief.

 

145.                   I am aware that the view that a discretion to exclude exists may lead to some practical problems. Thus, Martin J.A. in Stratton, supra, at p. 467, feared that "in the absence of acceptable guidelines, the recognition of such a discretion would result in a lack of uniformity in its application which would not be consistent with the proper administration of justice". In this regard, he drew attention to the difficulty of cataloguing convictions for certain kinds of criminal misconduct on the basis of greater or lesser relevance in assessing testimonial reliability. This, in his view, militated against any interpretation that would cut down the ambit of the words "any offence" in s. 12. As I stated earlier, however, this Court has since noted that such concerns go to weight rather than admissibility. Apart from this, I respectfully do not share the concern that such a discretion would lead to an intolerable lack of uniformity inconsis­tent with the proper administration of justice. That has not been the experience in other common law jurisdictions. Besides, the prevailing interpretation of s. 12 itself fosters lack of uniformity in that it tends to deter accused persons with previous convictions from testifying. It can also lead to injustice. In any event, I cannot accept that the certainty of injustice is more desirable than the exercise of a considered discretion based on judicial guidelines which favours exclusion where injustice could otherwise arise.

 

The Nature of the Discretion

 

146.                   I turn now to a consideration of the nature and scope of the discretion. In considering this question, it is necessary to refer to the decision of this Court in Wray, supra, the case most often cited in support of the existence of this discretion.

 

147.                   The facts of Wray are somewhat notorious and do not bear repetition here. What is important for present purposes is to note that what the accused there sought was the exclusion of relevant, admissible evidence on the basis that the evidence had been unfairly obtained and, therefore, that its admission into evidence would bring the administration of justice into disrepute. The specific holding in Wray, per Martland J. for the majority (Fauteux, Abbott, Ritchie and Pigeon JJ. concurring), was that no such discretion existed (p. 287). Martland J. went on, however, to recognize that there was a discretion to exclude evidence which, if admitted, could prevent the accused from receiving a fair trial. Speaking of a dictum of Lord Goddard C.J. in the Privy Council case of Kuruma v. The Queen, [1955] A.C. 197 (itself apparently grounded in Noor Mohamed v. The King, [1949] A.C. 182 (P.C.)), he stated, at p. 293:

 

It recognized a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Even if this statement be accepted, in the way in which it is phrased, the exercise of a discretion by the trial judge arises only if the admission of the evidence would operate unfairly. The allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.

 

And, at p. 295, he concluded:

 

                   In my opinion, the recognition of a discretion to exclude admissible evidence, beyond the limited scope recognized in the Noor Mohamed case, is not warranted by authority, and would be undesirable. The admission of relevant admissible evidence of probative value should not be prevented, except within the very limited sphere recognized in that case.

 

148.                   As Judson J. observed, however, the comments respecting the latter type of discretion were, strictly speaking, obiter dicta (at p. 297):

 

It is now being suggested that this evidence should be excluded even though it is relevant and admissible and of great probative value on the ground that its reception would operate unfairly against the accused and, according to the Court of Appeal, bring the administration of justice into disrepute. I am not concerned at this stage with the exclusion of evidence which is admissible and relevant but of such slight probative value that it should be rejected because of its prejudicial tendency in the eyes of the jury. There are plenty of dicta to this effect: Maxwell v. Director of Public Prosecutions; Stirland v. Director of Public Prosecutions; R. v. Cook; Noor Mohamed v. The King.

 

                   The principle is also stated in 7 C.E.D., 2nd ed., p. 105, that matters of slight probative value may be excluded in the discretion of the judge when likely to cause undue prejudice, unfair surprise or confusion of issues. This principle, I repeat, is not in issue in this appeal.

 

Indeed, the exercise of discretion in the two situations described above implicate quite different concerns. This was recognized by other members of the Court in Wray, supra (at pp. 288, 295, per Martland J., and p. 282, per Cartwright C.J. dissenting); see also R. v. Sang, supra; Weinberg, "The Judicial Discretion to Exclude Relevant Evidence" (1975), 21 McGill L.J. 1, at pp. 25‑26. It is the latter type of discretion that concerns us in the present case.

 

149.                   While the above quoted comments of Martland J. respecting the discretion recognized in Noor Mohamed, supra, were, as I have noted, strictly speaking obiter dicta, they have nevertheless been accepted as binding and frequently applied by lower courts, thus clearly confirming that the discretion exists in Canada.

 

150.                   Less settled, however, is the precise relationship that must exist between the potential prejudice and probative value of the evidence sought to be excluded in order to successfully trigger the exercise of this discretion. The prevalent reading of Wray, supra, that the lower courts have, albeit reluctantly, adopted is that the discretion is a very circumscribed one, exercisable only when the probative value of the evidence is "trifling" and its prejudicial potential great. In some respects, therefore, the words of Martland J. have taken on the fixity of a `test' which, once the elements thereof are met, results in exclusion. It seems to me that one could scarcely designate this inquiry the exercise of a discretion. However, in the 1983 Morris case, supra, Lamer J. pointed out that what was contemplated was a balancing of factors, rather than an elemental test. He noted, however, that the scope of the discretion was unclear. As he put it, at p. 202:

 

                   This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other. The degree of probative value required to overcome the exclusionary rule is presently the object of some disagreement and the law is as a result somewhat unclear. We do not need consider this aspect of the rule at any length as the facts of this case do not bring us within the exception. [Emphasis added.]

 

151.                   One of the reasons for the law's present lack of clarity is that the circumscribed discretion found to exist by the Privy Council in Noor Mohamed, supra, and relied on by this Court in Wray, supra, has subsequently been greatly released from the restrictive terms in which it was there described. It is now accepted in England that a trial judge has a discretion to weigh considerations of probative value and prejudice and to exclude evidence not only if its probative weight is "trifling" but whenever its "prejudicial effect would be "out of proportion to its true evidential value"" (R. v. Sang, supra, per Lord Fraser ‑‑ approving of this formulation in Harris v. Director of Public Prosecutions, [1952] A.C. 694 (H.L.), at p. 707 ‑‑ at pp. 446‑47; see also, at pp. 433‑34, per Lord Diplock; at pp. 438‑39, per Viscount Dilhorne; and, at p. 445, per Lord Salmon).

 

152.                   Like Lamer J. in the 1983 Morris case, supra, I regard this question as open. However, for reasons that will appear, I need and ought not address it here given the particular facts of this case, and the fact that the issue was not argued before us. The fact that the question has a Charter  dimension does not alter the matter because the common law discretion is ultimately grounded in the principle that the accused is entitled to a fair trial (see the passages quoted earlier from Wray, supra, at p. 293 and Powell, supra, at p. 119), which is precisely what is required by the Charter . Accordingly whether one accepts the narrow or broader version of the discretion is a function of what one thinks is required to give effect to that principle. For present purposes, therefore, it is sufficient simply to recognize that the discretion to exclude exists.

 

Factors to Be Considered

 

153.                   The final question to be considered relates to the factors to which regard might usefully be had respecting the exercise of this discretion in the present context. In discussing this matter, I shall have occasion to refer to the experience in the United Kingdom and the United States, for while the statutory provisions regulating the admission of evidence of previous convictions in those countries are very different from s. 12, many of the guidelines developed there are nonetheless instructive.

 

154.                   It is impossible to provide an exhaustive catalogue of the factors that are relevant in assessing the probative value or potential prejudice of such evidence, but among the most important are the nature of the previous conviction and its remoteness or nearness to the present charge.

 

155.                   Clearly, the probative value and prejudicial effect of a previous conviction are directly affected by the nature of that conviction. As the Court of Appeals, D.C. Circuit, stated, in Gordon v. United States, 383 F.2d 936 (1967), at p. 940:

 

                   In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a "bad" person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity.

 

See also R. v. Watts (1983), 77 Cr. App. R. 126 (C.C.A.), at p. 129; cf. R. v. Powell (1985), 82 Cr. App. R. 165 (C.C.A.), at pp. 171‑72.

 

156.                   Clearly, too, the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission. I agree fully with the opinion of the court in Gordon, supra, at p. 940, that:

 

                   A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time". As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. [Emphasis added.]

 

See also, in the United Kingdom, Maxwell v. Director of Public Prosecutions, supra, at p. 321; R. v. Watts, supra; but cf. R. v. Burke (1985), 82 Cr. App. R. 156 (C.C.A.), at p. 164; Powell (C.C.A.), supra.

 

157.                   I think that a court should be very chary of admitting evidence of a previous conviction for a similar crime, especially when the rationale for the stringent test for admitting "similar fact" evidence is kept in mind.

 

158.                   The remoteness or nearness of the previous conviction is also, as the court in Gordon, supra, stated, "a factor of no small importance" (p. 940). Combined with this factor are the circumstances of the accused. As the court in that case put it, at p. 940:

 

Even [a conviction] involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.

 

159.                   One further, and to my mind, problematic factor that often surfaces in the case‑law of both countries (as it does in the present case) is whether it is fair not only to the accused but to the prosecution to prohibit cross‑examination respecting previous convictions, especially when a deliberate attack has been made upon the credibility of a Crown witness and where the resolution of the case boils down to a credibility contest between the accused and that witness; this issue has arisen in R. v. Jenkins (1945), 31 Cr. App. R. 1  (C.C.A.), at p. 15; R. v. Cook (1959), 43 Cr. App. R. 138 (C.C.A.), at p. 143; Powell (C.C.A.), supra, at pp. 171‑72; Burke, supra, at p. 161. In considering the English cases, however, it should be noted that s. 1(f) of the Criminal Evidence Act, 1898, specifically provides (subject, as we saw, to the overriding discretion to exclude) that an accused's shield from cross‑examination is lost when he casts aspersions on the character of the prosecutor or his witness, so emphasis on this factor is perhaps particularly justifiable.

 

160.                   The rationale for permitting cross‑examination in such circumstances clearly is that the jury ought to have before it the record of the person attacking the credibility of the Crown witness' character in order to determine whether he is any more worthy of belief than the person attacked. In the American context, the court in Gordon, supra, expressed the matter thus, at p. 941:

 

                   Even though we need not go beyond Appellant's failure to raise the issue he now relies on, we note that the admission of Appellant's criminal record here, along with the criminal record of the complaining witness, was not in a vindictive or "eye for an eye" sense, as Appellant argues. Rather it was received because the case had narrowed to the credibility of two persons ‑‑ the accused and his accuser ‑‑ and in those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.

 

That this matter is not free from controversy, however, is clear from the following comments of the trial judge in United States v. Brown, 409 F. Supp. 890 (W.D.N.Y. 1976), at p. 892:

 

                   I consider the considerations set forth in United States v. Jackson [405 F. Supp. 938 (E.D.N.Y. 1975)] to be astray.... Jackson was said to be a case wherein the Government had substantial proof against the defendant and was not one in which the outcome was going to depend upon a one‑on‑one testimony with credibility being the big factor. The court implied that, if it were the latter, he would tend to admit the evidence of the earlier criminal conviction.

 

                   I consider this analysis of the quantum of prejudice erroneous. The reverse should be true. If the Government has a good case against a defendant, the admission of evidence of earlier convictions would tend to be "harmless error" and consequently non‑prejudicial. If, on the other hand, the case were going to be determined quite substantially on the credibility of the defendant‑witness, admissions of earlier convictions would be highly prejudicial. In Jackson the court is saying that, with substantial evidence on its side of the case, the Government is not going to be detrimented [sic] by having this piece of evidence kept out of the case. This seems not at all the criterion of which Rule 609(a) speaks.

 

161.                   My own view is that there may be cases where the interests of not presenting a distorted picture to the jury might require permitting such cross‑examination, but I do not think this factor can override the concern for a fair trial. Indeed, cross‑examination should only be permitted on the foregoing basis where to do so would render the trial more, and not less, fair; see Luck, supra.

 

162.                   It must be remembered that prejudicial potential and probative value are not abstract qualities. They exist in the context of a concrete case and are determined with reference to the circumstances of the case. I turn now to briefly consider the Charter .

 

Section 12  and the Charter 

 

163.                   It may be argued that even the recognition of a discretion to exclude after consideration of the factors outlined earlier in this judgment does not ensure that s. 12, as it applies to an accused person, satisfies the constitutional mandates of the Charter . Indeed, while the appellant's main argument was that such a discretion must exist, as a minimum, to validate s. 12  under the Charter , he also appears to have attacked more generally the application of s. 12  to accused persons under any circumstances.

 

164.                   In so far as his argument questions the fairness of the trial or the impartiality of the triers of fact (s. 11 (d)) on the ground that s. 12 admits evidence irrelevant to the issue of credibility, I reiterate my view that such evidence is relevant and prima facie admissible. Evidence of previous convictions advances, to a greater or lesser extent, a fact in issue, i.e., the credibility of an accused who testifies, and is therefore relevant. In my view, admitting relevant evidence, in the absence of a valid reason for excluding it, accords with the principles of fundamental justice, as does the exclusion of irrelevant evidence. Thus this general or first principle of the law of evidence, the principle of relevancy, helps to ensure that the trial is conducted fairly and that justice is done.

 

165.                   If the appellant's broader argument is based on the notion that, to ensure a fair trial and impartial jurors, evidence of the previous convictions of an accused should always, as a matter of law, be excluded because of their prejudicial effect and in spite of their probative value, I cannot agree. It is true that s. 11  of the Charter  constitutionalizes the right of an accused and not that of the state to a fair trial before an impartial tribunal. But "fairness" implies, and in my view demands, consideration also of the interests of the state as representing the public. Likewise the principles of fundamental justice operate to protect the integrity of the system itself, recognizing the legitimate interests not only of the accused but also of the accuser. To accept the appellant's argument would be to ignore those considerations.

 

166.                   In my view, the recognition of a discretion to exclude evidence when its probative value is overshadowed by prejudicial effect ensures that the legitimate interests of both the public and the accused are taken into account. Justice and fairness demand no less and expect no more. The factors that should be considered in exercising this discretion, which I have earlier set out, ensure that this occurs. Each of them assists in focusing the inquiry on whether the probative value of any previous convictions the Crown seeks to introduce into evidence is sufficient to counterbalance the unjustified prejudice to the accused that would result, thus securing fairness to both. Indeed, as I earlier noted, the touchstone of all these factors is the fairness of the proceedings.

 

167.                   The recognition and proper exercise of this discretion, therefore, ensures that s. 12 is constitutionally valid. Of course if it is improperly exercised, or if, as is the case here, the trial judge fails to recognize that such a discretion is vested in him, then an appellate court may review the matter and order a new trial, find there has not been a miscarriage of justice and confirm the conviction or, in appropriate circumstances, exercise its own discretion in the matter; see R. v. Watts, supra.

 

168.                   I would stress, however, that, as is the case when an appellate court undertakes to review a trial judge's decision which is based at least in part on the unique circumstances of the case before him and his own first‑hand view of the proceedings, restraint ought to be exercised in interfering with a trial judge's exercise of discretion. More specifically, an appellate court should never, in the absence of clear error, simply substitute its own view of how that discretion ought to have been exercised for that of the trial judge.

 

169.                   I turn now to consider whether, in the circumstances of the present case, the trial judge, had he considered himself to have a discretion to exclude, ought to have excluded the previous conviction for non‑capital murder, and if so whether the conviction entered against the appellant can now stand.

 

Disposition

 

170.                   I am of the opinion that, even on the narrow view of the exclusionary discretion expressed in Wray, supra, the previous conviction for murder ought not to have been admitted in the present case.

 

171.                   As I indicated in my earlier comments respecting the admission into evidence of previous convictions for offences similar to that for which the accused is on trial, I think it self‑evident that the prejudicial potential harboured by the admission at a trial for murder of a previous conviction for non‑capital murder is manifestly profound. Furthermore, the probative value of this item of evidence in relation to credibility (which is the only use to which it legitimately could be put) is, at best, trifling, certainly in this case. The foregoing alone appears to satisfy a narrow reading of the test in Wray, supra.

 

172.                   However, as I mentioned earlier, discretion cannot be judicially exercised in a vacuum; it is only with reference to the circumstances of the case that its exercise becomes meaningful. The circumstances of the present case, however, rather than "indicat[ing] strong reasons for disclosure" (Gordon, supra, at p. 940), militate strenuously for exclusion. It is true that the appellant had assailed the credibility of Crown witnesses and, indeed, that credibility was the vital issue at trial. However, the circumstances of the case itself, indicating a violation by the appellant of his parole conditions, and the substance of the appellant's defence, indicating clearly the appellant's involvement in cocaine transactions, would have served to bring home to the jury the unsavoury criminal character of the appellant and, on the theory that such evidence affects credibility, this objective would have been fulfilled. This, along with the evidence of the appellant's previous convictions for theft and breaking and entering, amply served the purpose of impeaching his credibility. Indeed, the convictions for theft and breaking and entering, though quite remote in time, would appear far more probative of a disposition for dishonesty than a conviction for murder. The latter, in the circumstances of the case, added very little, if anything, to the jury's perception of the appellant's character for veracity; on the other hand, in the words of Hutcheon J.A. in the court below, "it might well be that the fact that he had been convicted some years before of a similar offence might have been the last ounce which turned the scales against him". The jury's actions at trial in this case in no way diminish this possibility.

 

Conclusion

 

173.                   I conclude, therefore, that s. 12  of the Canada Evidence Act , when read in conjunction with the salutary common law discretion to exclude prejudicial evidence, does not violate an accused's right to a fair trial nor deprive him of his liberty except in accordance with the principles of fundamental justice. Here, the trial judge erred in law in failing to recognize the existence of the exclusionary discretion described above and, consequently, in admitting into evidence the previous conviction for murder. Given my belief that the introduction of this evidence was, in the circumstances of the case, unjustifiably prejudicial to the fairness of the appellant's trial, I am unable to conclude that no substantial wrong or miscarriage of justice was occasioned thereby. I would, therefore, allow the appeal, quash the conviction and order a new trial pursuant to s. 613(2) (b) of the Criminal Code . I would answer the first constitutional question in the negative and consequently find it unnecessary to answer the second constitutional question.

 

                   Appeal dismissed, La Forest J. dissenting.

 

                   Solicitors for the appellant: Young & Co., Vancouver.

 

                   Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.

 

                   Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.

 

                   Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

 

                   Solicitor for the intervener the Attorney General of Quebec: Jacques Gauvin, Ste‑Foy.

 

                   Solicitor of the intervener the Attorney General for Alberta: The Department of the Attorney General, Edmonton.



     * Estey J. took no part in the judgment.

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