Supreme Court clarifies test for using past conviction records

The Supreme Court of Canada has clarified how an accused’s prior convictions may be used during a trial to challenge their credibility.

The question at the centre of R. v. Hussein was whether the trial judge made an error in dismissing the accused’s application to exclude parts of his criminal record from evidence at a jury trial. 

The matter dates back to February 1, 2017, when Awale Hussein was one of eight people at a house party in a basement suite in Ottawa. Over the course of the night, one of the party attendees was fatally stabbed. Hussein was not there when the police arrived, but his blood was found at the scene. 

At trial, Hussein requested that his previous convictions as a youth and for past violent offences as an adult be withheld from the jury. His application was denied, and he was convicted of second-degree murder. 

The Ontario Court of Appeal upheld the conviction and the trial judge’s reasoning for denying the Corbett application, which was that the probative value of the criminal record outweighed its prejudicial effect.

In its unanimous decision, the Supreme Court of Canada dismissed Hussein’s appeal of his conviction, which was based on the denial of his application to withhold his past criminal convictions from the jury at trial. 

However, the Court’s reasons broke down in a 7-2 split over whether the Corbett application tests, which determine what the trier of fact is allowed to know about the accused’s past, had been properly applied in the case. 

The majority held that even though the trial judge erred in the application of the Corbett application, this was one of the rare cases where the curative proviso applied because the evidence of Hussein’s guilt at trial was overwhelming and a conviction was inevitable. 

A required recalibration

"This appeal marks the first time that this Court has been asked to revisit the Corbett framework,” wrote Chief Justice Richard Wagner for the majority. 

He noted that Hussein argued that courts have inconsistently interpreted and applied the test, and called on the Court to adjust the rules to confine the relevance of past convictions to the issue of the accused’s honesty and to recognize the role of social context as a factor.

“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,” Wagner said.

Common law principles have long recognized that Crown-led evidence of past convictions should be presumptively inadmissible to prohibit the trier of fact from inferring guilt just because the accused appears to be the “type” to commit the crime. 

This constitutional imperative preserves the integrity of the presumption of innocence and the right to a fair trial. 

Under the 1988 Corbett framework, trial judges should consider four factors when weighing the probative value and prejudicial effect of an accused’s prior convictions. These include the nature of the prior convictions, the recency or remoteness of the prior convictions, the similarity between the prior convictions and the charge faced by the accused, and the risk of presenting a distorted picture to the trier of fact.

Wagner said the trial judge made errors when exercising his discretion on admissibility, and felt Hussein’s youth offences should have been excluded. The same went for the “highly prejudicial violent offences of assault, uttering threats, and possession of a weapon.” 

To that end, the majority clarified that trial judges should assess whether the nature of a prior conviction is of sufficient probative value to outweigh its prejudicial effect with regard to specific capacity or willingness to be dishonest. 

Trial judges should also assess the social context of those past convictions and take judicial notice of well-established forms of social disadvantage to ensure trial fairness and efficiency. 

The concurring reasons, written by Justice Mahmud Jamal, with Justice Malcolm Rowe agreeing, argued that the trial judge made no error in applying the Corbett framework.

Tony Paisana, a partner at Peck and Company in Vancouver and counsel for the Trial Lawyers Association of BC in the case, says the judgment is a welcome development.

“It provides clarification and recalibration of the Corbett test, and highlights how the existing test, while not changing, should be approached differently,” says Paisana, who is the past chair of the CBA’s criminal justice section.

It also recognizes that convictions for crimes that don’t involve dishonesty or disregard for court orders have very limited significance. Given their high prejudicial value, they should be admitted only exceptionally when the accused testifies.

Paisana is a board member of the Independent Criminal Defence Advocacy Society, which also intervened in the case, arguing that a criminal record, by itself, does not demonstrate a capacity to be dishonest on the part of the accused, because people commit crimes for all sorts of reasons. The Court fully accepted that submission, which he says is an acknowledgement that “non-crimes-of-dishonesty have very limited value and are highly prejudicial.”

In its submissions, the Trial Lawyers Association of BC asked that the “distortion factor” in the Corbett test — the risk of presenting a distorted picture to the trier of fact — be eliminated. 

The Court didn’t take that suggestion, but acknowledged the factor has taken on outsized importance in some cases. It stressed that judges must be very clear when invoking this part of the test and limit it to situations where it’s necessary. So, if there’s other evidence of the accused’s bad character, there’s no need to pile on with the criminal record.

Paisana says the decision is another step toward a more nuanced understanding of how criminal law evidentiary rules affect the accused and their unique role in the justice system.

Julianna Greenspan, a partner at Greenspan Partners LLP in Toronto, was counsel for the Criminal Lawyers Association in the case. The Association is pleased with the decision, as the existing framework has prejudiced many accused.

“The hope is that following Hussein, trial judges will be uniformly mindful of the Court’s guidance and apply needed restraint when considering the potential use of an accused’s criminal record in a jury trial,” she says.

A more fair and balanced analysis

Theresa Donkor, director of advocacy with the Canadian Association of Black Lawyers, and senior associate with Rudnicki & Company in Toronto, was encouraged to see the Court adopt their submission on incorporating social context evidence into the Corbett analysis.

“That will hopefully lead to fairer outcomes for particularly Black, Indigenous and marginalized accused persons when it comes to assessing the probative value and prejudicial effect of their criminal record,” she says.

Donkor says the Court held that trial judges should take into account the context in which a criminal record is accumulated, given that it can sometimes result from systemic discrimination, such as poverty, rather than dishonesty.

“When you’re considering the prejudicial effect, I appreciate that the Court acknowledged that Black, Indigenous folks and people with mental health issues are the targets of racism and biases that put an elevated risk of putting their prior convictions into evidence,” she says. 

“There is an elevated risk that juries or triers of fact might leap to improper conclusions of guilt just based on stereotypes that we know are not to be true.”

The dismissal of the appeal in this case shows that the new, modified Corbett analysis is workable and won’t automatically lead to a “get out of jail free” card.

“The Court fairly and rightly stated that social context is not determinative—it’s just another important factor to take into consideration,” Donker says. 

“It just leads to a more fair and balanced analysis.”