The Criminal Record of the Accused and the Mind of the Reasonable Juror

Featured in Robson Crim
Aug 14
6 min read

Author: JH

Having a criminal record is inherently prejudicial to any Canadian. A criminal record impacts a person’s ability to obtain certain types of employment, affects their ability to interact with certain members of society, and carries with it a stigma that follows most individuals for the rest of their lives. In considering the burden a criminal record places on an individual’s daily life, it is important to consider the impact it could have on a person’s liberty every time their record is deemed more probative than prejudicial and admitted in evidence in a criminal trial. This is especially important when the use or non-use of this record is left to the interpretation of members of the jury.

Section 12(1) of the Canada Evidence Act allows for witnesses in a trial to be questioned about their past convictions.[1] The purpose of this section is to permit evidence of prior convictions as it relates to the credibility of the witness.[2] This means that, in the spirit of fairness, if an accused testifies and puts their own credibility into question, they too can be examined on their criminal record. The key difference is that while a typical Crown or defence witness will walk out of that courtroom the same way they walked in, the accused may not. This dynamic was acknowledged in the Supreme Court of Canada’s 1988 decision in R v. Corbett, where the law requires judges to direct jurors on how they may use an accused’s criminal record in their assessment of the evidence put forth by the accused during their examination.[3] An accused can now bring forth a Corbett application, which allows for the trial judge to prevent cross-examination of an accused on all or some of the convictions contained in their criminal record if the learned judge decides that their prejudicial effect outweighs their probative value.[4]

Recently, a young Black man named Awale Hussein charged with second-degree murder for a death caused by multiple stab wounds brought forward a Corbett application in his criminal trial, and the trial judge denied his application. Mr. Hussein appealed to the Ontario Court of Appeal, and the decision was delivered in 2023. His criminal record contained both adult and youth convictions.[5] His youth record included convictions for uttering threats, possession of a weapon, and assault, all of which he pled guilty to.[6] His adult record, which spanned from March 2013 to March 2016, totalled 12 convictions, including convictions for failing to comply with court orders, assault, robbery, possession of a weapon, uttering threats, and mischief.[7]

The Crown intended to cross-examine him on both his youth and adult records and had even advanced a similar-fact argument for his youth record, which was denied.[8] At trial, Mr. Hussein argued that the inclusion of his prior convictions would inherently prejudice the jury against him and that his youth record lacked probative value.[9] Mr. Hussein specifically noted that due to the circumstantial evidence of the Crown’s case, the jury would be more likely to resort to propensity reasoning.[10] While the Ontario Court of Appeal acknowledged this real fear, they ultimately found that the trial judge was correct in his denial of the Corbett application and the assessment of this risk due to the presence of other “clear permissible pathways” to a guilty verdict.[11]

At the Ontario Court of Appeal, Mr. Hussein argued that jurors could draw a general inference that he has a propensity for violence due to his prior convictions, and it would be easier for the jurors to disregard the other potential reasons for his apparent “disregard” for the justice system such as his developmental delays and degree of intoxication at the time of the alleged offence.[12] The Ontario Court of Appeal agreed “[t]hat there is a risk that jurors could engage in the kind of general propensity reasoning” identified by Mr. Hussein.[13] Paciocco J.A. stated that “[i]mproper propensity reasoning can be driven more by emotional reaction to prior offences than precise logical deduction,” and that it is this emotional reaction where the problem exists with introducing an accused’s criminal record into the minds of the reasonable juror.[14]

The current remedy for this very real possibility is found in the trial judge’s limiting instructions. These instructions instruct the jury that they are only to use an accused’s record to assess the credibility of their statements at trial and not as evidence that the accused committed the offence with which they are charged.[15] Limiting instructions, in my view, while logical, are also very aspirational and are perhaps given too much credit as to their effectiveness and are held in too high a regard in our court system. Ignoring inadmissible evidence has proved to be an arduous task on its own, and while we trust and hope that judges are able to do it, how confident can we be that a juror is able to? Luckily, there has been extensive research done in the way of the ability of jurors to disregard inadmissible evidence. This research has shown that when jurors are exposed to inadmissible evidence that favours the prosecution, that guilty verdicts increased.[16]

In terms of limiting instructions, studies with mock juries have shown the same results as the ones conducted on exposure to inadmissible evidence. For example, a 1975 Canadian study using mock juries demonstrated that if the fake accused had a previous conviction for the same offence, the mock jurors were significantly more likely to convict them, despite effective limiting instructions and with all other factors remaining static.[17] The limiting instructions in Mr. Hussein’s trial were deemed satisfactory, but even Paciocco J.A. acknowledged that he had no doubt that, “it is much easier for many to believe that a murder would be committed by a person prone to assaulting others, threatening others, and possessing weapons, than by someone who has no record of doing these things.”[18] This position is supported by the research.

Considering some of the research done over the last 50 years, it is clear that limiting instructions are not completely effective in limiting the prejudicial effect of an accused’s criminal record being admitted into trial, regardless of how probative it may be. As Paciocco J.A. made clear in his reasons, exposure to prior convictions does inherently affect the jurors’ apprehension of not only the accused’s evidence but of the accused themselves. While s. 12(1) of the Canada Evidence Act restricts the introduction of an accused’s record to their decision to testify, I argue that this does not help in the most serious of cases. For the effective use of complete defences such as self-defence, the accused has to testify, and, as seen in Mr. Hussein’s case, Corbett applications are not always successful. This would mean that for an accused to mount such a defence, it comes at the very real risk of their prior convictions being entered into the trial record.

As the aforementioned research has shown, limiting instructions are not effective in completely mitigating this risk. The stigma associated with a criminal record exists for a reason; it exists in our systemic exclusion of those with criminal records and in the minds of those who make up our society. It is these members of society, those without criminal records with indictable offences, who make up the members of our juries. There is a reason why criminal records are used to attack credibility of witnesses, because we as a society are inherently less trusting of those with criminal records. When liberty is at stake, is it not reasonable to protect an accused from this inherent prejudice?

Mr. Hussein has been granted leave to appeal to the Supreme Court of Canada, so perhaps someday soon, we will have our answer. For now, however, Mr. Hussein remains a convicted murderer, and his criminal record remains in the minds of his jurors and in the minds of the public.