The case marks the first time the SCC has been asked to reconsider the framework in R v. Corbett
The Supreme Court of Canada upheld a second-degree murder conviction for an Ottawa man on Friday, but clarified that an Ontario trial court should have barred the jury from considering parts of the man’s criminal record, including those related to his youth offences and several violent convictions.
According to the majority, Friday’s ruling in R. v. Hussein aims to clarify how courts should apply the framework laid out in R. v. Corbett. That 1988 high court decision found that prior convictions are relevant to establishing the credibility of an individual accused of a crime and are presumptively admissible as evidence under s. 12(1) of the Canada Evidence Act.
However, Corbett also found that despite s. 12(1), trial judges still have the discretion to exclude prior convictions as evidence when that evidence would cause more prejudice than it would provide value to a trial. To determine whether to exercise that discretion, trial judges should consider several factors, including the nature and recency of the prior convictions.
“In my view, the Corbett framework has stood the test of time but warrants clarification and modification to ensure that it is applied in a predictable and principled manner,” SCC Chief Justice Richard Wagner wrote for the majority. He added that the appeal in Hussein marks the first time the high court has been asked to reconsider the 1988 framework.
Justices Mahmud Jamal and Malcolm Rowe delivered a concurring opinion, stating that they agreed with the majority’s decision to uphold the conviction but believed the Ontario trial court’s ruling was sound.
The case dates back to 2017, when an Ottawa man was fatally stabbed the morning after a party. No one witnessed the stabbing. Police arrested Awale Hussein, who had attended the party, after they found traces of his blood at the apartment where the stabbing had occurred.
At trial, Hussein submitted a Corbett application seeking to exclude his criminal record from evidence the jury could consider. Hussein’s criminal record had 17 entries, having been found guilty as a youth for various offences, including possession of a substance, uttering threats, and robbery. He also had adult convictions for assault, uttering threats, failing to comply with court orders, possession of a weapon, and mischief.
The trial judge dismissed Hussein’s application, concluding that the value of his criminal record outweighed its potential to prejudice jurors towards him unfairly. The jury convicted him of second-degree murder, and an appellate court later upheld the conviction. Hussein appealed to the SCC.
In Friday’s decision, Wagner said an accused’s criminal record is a form of character evidence – that is, evidence of a person’s personality, psychological state, attitude, or general capacity to engage in any particular behaviour. While prior convictions can be used to assess the accused’s credibility, they cannot be used to support a line of reasoning that an accused is guilty of an offence simply because they committed other crimes in the past.
The reason for this latter rule is that “bad character evidence often contributes to reasoning prejudice and moral prejudice,” Wagner wrote. “Both forms of prejudice undermine trial fairness.”
Wagner defined reasoning prejudice as “the risk that bad character evidence will distract the trier of fact from deciding an issue in a reasoned way, perhaps by causing confusion or attracting disproportionate attention.”
Moral prejudice, meanwhile, “refers to the risk that bad character evidence will be used by the trier of fact to draw the… inference that the accused is the kind of bad person likely to commit the offence charged,” Wagner added. “The common law has long recognized that this line of reasoning is unfair because it leads to convictions on the basis of ‘bad personhood,’ effectively relieving the Crown of having to prove every element of the offence beyond a reasonable doubt.”
When assessing the probative value and prejudicial effect of prior convictions, Wagner said the most important Corbett factors are the nature of the previous convictions, their recency, and their similarity to the charge under consideration. The chief justice also found that when prior convictions are similar to the offence for which an accused is currently being charged, there is a serious risk that such evidence will unfairly influence a jury.
Based on these criteria, Wagner said the trial judge did not properly weigh the probative value or prejudicial effect of allowing the jury to consider Hussein’s criminal record.
“At a minimum, the trial judge ought to have excluded Mr. Hussein’s youth offences and the highly prejudicial violent offences of assault, uttering threats, and possession of a weapon,” Wagner said.
Still, the majority concluded it would uphold Hussein’s conviction. While the trial judge’s errors were “serious and would justify a new trial,” the evidence of Hussein’s guilt was “overwhelming,” Wagner said.
Jamal and Rowe said they would also uphold the conviction, but found the trial court did not make an error in rejecting Hussein’s Corbett application.
“Although another trial judge might have weighed the potential prejudice and probative value differently, that does not grant an appellate court licence to interfere,” Jamal wrote. “I would affirm that ‘[t]rial judges are afforded a wide berth of discretion in making their Corbett determinations’… and I would defer to the trial judge’s exercise of discretion in this case.”
In a joint statement, counsel for Hussein said the high court’s “revised framework for allowing an accused to be cross-examined on his or her criminal record is a welcome improvement in the law.
“While we are disappointed that our client’s conviction was upheld, we are gratified that this decision will enhance the fairness of criminal jury trials going forward,” read the statement by Matthew Gourlay and Brandon Chung at Henein Hutchison Robitaille LLP and Peter Sankoff of Sankoff Criminal Law.
“The chief justice’s analysis is appropriately sensitive to the prejudicial potential of this evidence. It provides important guidance for screening at the trial level and for more robust review on appeal.”
Spokespeople for Ontario’s Ministry of the Attorney General did not respond to a request for comment.
