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In this excerpt from Mack's Criminal Law Bulletin, Dallas Mack asks if R. v. Corbett, 1988 CarswellBC 252 (SCC), is being applied correctly.

A review of recent cases on Corbett applications seems to point to a misunderstanding, or at least a misapplication of the principles that govern this type of application. Those principles must be properly understood and applied. Misapplication of them creates an "entirely misleading situation" for the jury and has the real potential to mislead the jury in their assessment of the credibility of an accused.

The governing principles are as follows.

First, there is a presumption of inclusion of the entire criminal record: Corbett; section 12 Canada Evidence Act; Rule 31.01.

Second, the application must be brought by the accused and should be done after the close of the Crown's case: Alexander

Third, the accused should provide an evidentiary basis which logically would include an outline of the anticipated evidence of the accused.

Fourth, the factors which govern the application are (i) nature of the prior conviction, (ii) importance of the conviction in question within the context of the entire record, (iii) remoteness to the current offence, (iv) similarity and (v) conduct of the defence.

With respect to the nature of the offence, as a general rule, all convictions are relevant: Corbett at paras 21 and 23. Violent offences may be equally probative of credibility as crimes of dishonesty: S. (C.); R. v. Abreha, at paras 37 and 43; R. v. Tremblay;Saroya at para 10; R. v. Gagnon, at para 74; R. v. Charland, at para 35; aff'd 1997 CarswellAlta 1114 (S.C.C.); R. v. Pinkus, at para 24.

With respect to the importance of the conviction, the concern that must be recognized is that the removal of a serious conviction will distort the picture of the accused and give the jury a "completely false impression": Gagnon at para 69; Pinkus at para 21.

With respect to remoteness, whether an offence predates or post-dates the current charges is not particularly relevant, rather, it is the remoteness in time that is helpful: S. (C.).

With respect to conduct of the defence, it is important to note that this (as with all factors) is not determinative. There does not need to be an attack on the character of the Crown witnesses: Charland at para 34.

Fifth, it cannot be overstated that the court must recognize that juries can and will follow instructions. It would be an exceptional case where one would conclude that the jury could not follow instructions it is provided on the proper use of evidence: Corbett at paras 33-35 and 38; Charland at para 36; Gagnon at para 74; Pinkus at para 26; and Saroya at para 13.

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About the author: Assistant Crown Attorney in Ottawa and creator of, and chief blogger at Mack's Criminal Law. The views and opinions expressed herein are those of the author and do not represent those of the Attorney General or the Crown Attorney's office. Please follow Dallas on Twitter at @dallas_mack.
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