Applying Gladue Principles to Corbett Applications in R v King: A New Safeguard for Indigenous Accused Persons?

Author: BC

Introduction

In R v Hart, Cromwell JA stated that the cross-examination process is a “cornerstone of the adversarial trial process… [and that] it is an important vehicle for the discovery of truth.”[1] As such, if an accused person chooses to testify,[2] their testimony can be subjected to a cross-examination by Crown counsel.[3] The cross-examination process is ultimately “a fundamental feature of a fair trial,”[4] and is intended to produce evidence in relation to the credibility of an individual, their version of events, and any events that the cross-examiner believes can be deposed.[5] When conducting a cross-examination, counsel is usually bound by “the rules of relevancy and materiality.”[6] Thus, when an accused is cross-examined, it may often be the case that they have an existing prior criminal record. In such a case, defence counsel may prepare what is known as a Corbett application which prohibits the extent or use of the accused’s “record of conviction in cross-examination” to limit attacks against their credibility.[7] While in the past some safeguards have been developed and used to prevent the misuse of a criminal record as evidence of guilt against the accused during cross-examination, the recent 2022 decision by the Ontario Court of Appeal (ONCA) in R v King[8] adds an additional layer of protection for accused persons of Indigenous ancestry.[9] The newfound precedential impact of R v King, as it relates to the Corbett applications of Indigenous accused persons, is ultimately the subject of inquiry in this brief analysis.  

Corbett Applications and the Decision in R v King

According to section 12(1) of the Canada Evidence Act, a previous criminal conviction of an accused who chooses to testify is presumptively admissible as evidence that can be used to dispute their credibility as a witness.[10] This is ultimately based upon the assumption that “convictions are relevant for credibility while testifying.”[11] Thus, when defence counsel initiates a Corbett application, the burden will be laid upon the accused to “establish the basis to edit any part of their record.”[12] A judge will determine whether the prejudicial effect of a past conviction warrants exclusion[13] on a balance of probabilities.[14] As per R v Corbett, some of the factors that a judge will consider in making this determination are: “(1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury.”[15] Overall, a judge should not use their discretion to exclude elements of a criminal record in the absence of explicit policy or legal reasons for doing so.[16] 

However, absent from these considerations until now, are safeguards specific to Indigenous accused persons. The well-known high rates of incarcerated Indigenous peoples in Canadian jails coupled with the growing awareness of the effects of colonization would appear to necessitate such a safeguard.[17] In this sense, R v King can be viewed as a response to the above factors. Put succinctly, R v King establishes that a judge, in the context of a Corbett application, should also incorporate Gladue principles into their analysis when determining whether to “allow prior convictions for an Indigenous accused person to be subject to cross-examination.”[18] 

In R v King, the accused was an Indigenous person who was charged with second-degree murder and was subsequently found not guilty at the trial level. One of the issues at appeal was whether the trial judge had erred in excluding the accused’s prior convictions for assault, as per the Corbett application that was advanced by defence counsel. At the appeal level, the ONCA concluded that the trial judge had not erred in excluding these prior convictions and the appeal was ultimately dismissed.[19] The reasoning for this, as summarized by Justice Fairburn, Justice Miller, and Justice George, is as follows:

The trial judge did not err in excluding the accused's prior convictions for assault. The accused had a lengthy criminal and youth record. He advanced many of the same arguments typically heard at a Corbett application, but included a novel argument that because of his Indigeneity, if the jury were to learn about the extent of his record, there was a heightened risk that it could cause an increased degree of prejudice to him. The trial judge noted that, while the fact of the accused's Indigeneity alone was not enough to apply the Gladue principles in a Corbett analysis, evidence to support the assertion that the accused had been “disadvantaged as an Indigenous person in society” could trigger such considerations.[20] 

As such, because the accused offered evidence of the effects of intergenerational colonial trauma on their life, the ONCA ruled that the trial judge had satisfied the “burden justifying the application” of Gladue principles to a Corbett application.[21] As such, the cross-examination of the accused on past crimes of violence would have “added little, if anything, to the jury's ability to assess his credibility.”[22] In sum, a trial judge must consider the accused’s Indigenous ancestry, personal conditions and history, and the broader societal context of colonialism and racism faced by Indigenous Canadians when determining if Gladue principles should apply to a Corbett application.[23] 

While the decision made by the ONCA is a positive development in the reconciliation process, one may still ask whether it went far enough. Perhaps the ONCA should have pondered if it was appropriate to further determine whether Gladue factors should be considered after a record is admitted during the cross-examination stage as an additional safeguard for accused Indigenous peoples.

Because the criminal record of an accused that is not excluded after a successful Corbett application could still possibly be “misused as evidence of guilt if admitted,”[24] three general safeguards limiting the probability of such an occurrence have been developed by the caselaw. Firstly, R v M.C. limits the cross-examination to the “fact that the conviction has occurred including its date and place, the offence of which the accused was convicted, and the sentence imposed.”[25] Secondly, R v Corbett establishes that judges must “direct jurors as to how they may or may not use the prior convictions put to an accused on cross-examination.”[26] Thirdly, R v Underwood reaffirms R v Corbett by asserting that judges can adjust the parameters of the cross-examination of the accused in relation to some or all of their past criminal convictions.[27] Consequently, one wonders if there could have been legal and analytical room here for the ONCA in R v King to expand Gladue principles to this area as well.

Conclusions

The decision in R v King ultimately reinforces the right to a fair trial accorded to all Canadians under section 11(d) of the Charter of Rights and Freedoms.[28] Thus, if there is evidence to support applying Gladue principles to a Corbett application, a trial judge will place the accused’s Indigeneity “in its proper context” and consider it “alongside the other traditional Corbett factors” to assess if certain previous convictions should be excluded from cross-examination.[29] This limits the potential for any biases or prejudices held by a jury to impact the trial process as the exclusion of prior criminal convictions may be able to prevent the reaffirmation of bias or prejudice towards Indigenous peoples. Therefore, these factors could assist in preventing the wrongful conviction and incarceration of Indigenous peoples by limiting the possible prejudicial effects of past criminal convictions. This constitutes a positive step forward in the reconciliation process and a significant step in the expansion of Gladue principles to the broader trial process.[30]

Ultimately, trial judges are afforded a “wide berth of discretion in making their Corbett determinations.”[31] Although R v King is a decision from the ONCA, it should still carry considerable precedential weight in Manitoba courts amidst the broader cultural context of reconciliation.  Needless to say, the expansion of Gladue principles should always be embraced despite where they may occur.

[1] R v Hart, 1999 NSCA 45 at para 8.

[2] See Canadian Charter of Rights and Freedoms, s 11(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[3] See Sidney N Lederman, Michelle K Fuerst & Hamish C Stewart, The Law of Evidence in Canada, 6^th ed (Student Edition) (Toronto: LexisNexis, 2022), at 16.1-16.13.

[4] R v Esau, 2009 SKCA 31 at para 17.

[5] R v OGK, 1994 BCCA 28 at para 129.

[6] R v Mitchell, 2008 ONCA 757 at paras 17 to 19.

[7] R v Corbett, 1988 SCR 670 [Corbett].

[8] R v King, 2022 ONCA 665 [King].

[9] See Wayne Gorman, “Cross-Examination of the Accused on their Criminal Record” (14 April 2023), online: Canadian Association of Provincial Court Judges <judges-juges.ca>.

[10] Canada Evidence Act, RSC 1985, c C-5, s 12(1).

[11] King, supra note 8 at para 140.

[12] R v Madrusan, 2005 BCCA 609.

[13] King, supra note 8 at para 143.

[14] Ibid at 145.

[15] Corbett, supra note 7 at 740-744.

[16] R v Mayers, 2014 ONCA 474 at paras 3 to 6.

[17] See Anna Chen, Mark Irving, Paul Robinson & Taylor Small, “Over-Representation of Indigenous Persons in Adult Provincial Custody, 2019/2020 and 2020/2021” (12 July 2023), online: Statistics Canada <www150.statcan.gc.ca>.

[18] See “Ontario Court of Appeal Agrees with ALS that the Gladue Principles Apply to Corbett Applications” (28 September 2022), online: Aboriginal Legal Services <aboriginallegal.ca>.

[19] King, supra note 8 at 2.

[20] Ibid at 2-3.

[21] Ibid at 3.

[22] Ibid.

[23] Ibid.

[24] See Gorman, “Cross-Examination of the Accused,” supra note 9.

[25] R v M.C., ONCA 502 at para 55.

[26] Corbett, supra note 7 at 690-91.

[27] R v Underwood, 1998 SCR 77 at 79.

[28] See Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[29] King, supra note 8 at 3.

[30] See “Ontario Court of Appeal Agrees with ALS,” supra note 18.

[31] R v Charland, 1997 SCR 1006 at 481-482.