Accused’s Indigeneity ‘relevant’ factor to take into account in Corbett application, court rules

By Amanda Jerome

Law360 Canada (September 28, 2022, 1:00 PM EDT) -- In upholding a lower court decision, the Court of Appeal for Ontario has asserted that “an accused’s Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application.” Counsel involved in the case noted the wide-reaching impacts on the criminal bar, stressing that there is “nothing in principle that would seem to necessarily limit the reasoning of the court here to only Indigenous accused.”

Owen Goddard, founder of Goddard & Shanmuganathan LLP and counsel for the respondent with Jonathan Shime, said the decision is going to be “very impactful for lawyers who are defending racialized clients in criminal courts.”

“Criminal lawyers in Alberta, British Columbia, across the country, need to pick this decision up, be aware of it, and walk it into their courtrooms and tell judges: ‘you need to apply this.’ I think it’s going to be huge,” he added.

In R. v. King, 2022 ONCA 665 the court dismissed appeals brought by the Crown over the acquittal of the respondent, Dale King, who had had been charged with “second-degree murder after he shot and killed Yosif Al-Hasnawi in downtown Hamilton” in 2017.

Owen Goddard, Goddard & Shanmuganathan LLP

Owen Goddard, Goddard & Shanmuganathan LLP

Two questions were put to the jury at trial: “(1) did the respondent act in self-defence; and, if not, (2) did he have the intention to commit murder?” The jury found Dale not guilty.

The Crown brought forward three grounds of appeal. The first, the court noted, alleged “misdirection in respect of self-defence. The second and third grounds alleged “an imbalanced evidentiary record because the trial judge erred in excluding evidence of the respondent’s alleged involvement in a robbery just before the shooting and his prior assault convictions.”

The court dismissed all three grounds. However, the third ground, which focused on the Corbett application, contains the “key” takeaway for lawyers, Goddard emphasized.

A Corbett application, the court explained, is “brought at the end of the Crown’s case and ruled upon before the accused is asked to say whether they will be calling a defence.”

The decision on a Corbett application is “a discretionary one,” the court added, noting that “Where the trial judge is satisfied on a balance of probabilities that the probative value arising from the criminal record is outstripped by the prejudicial effect that may arise from its admission, otherwise admissible convictions will be excluded.”

Associate Chief Justice of Ontario J. Michal Fairburn and Justice Jonathon George, writing for the Court of Appeal, noted that Dale had “brought a Corbett application at the close of the Crown’s case, seeking the exclusion of multiple convictions.”

“One of the arguments advanced in support of the Corbett application rested on the application of what counsel described as ‘Gladue principles,’ ” the judges explained, noting that the trial judge Justice Andrew Goodman of the Superior Court of Justice, made it clear that, “if it were not for the application of Gladue principles, a couple of the assault-related convictions may have been available to the Crown for cross-examination.”

The Crown argued that Justice Goodman “erred in his application of the Gladue principles.” The Crown accepted that “Gladue principles can be relevant to a Corbett analysis,” but it argued that Justice Goodman “erred in the methodology he used when considering those principles.”

“Absent that error, the appellant contends that at least one of those convictions would have been available to the trial Crown for purposes of cross-examining the respondent,” the court explained.

The judges noted that the Court of Appeal “has previously left open whether Gladue principles are relevant to a Corbett analysis.”

“The time has arrived to decide this issue,” they stressed, with Justice Bradley Miller in agreement.

The judges agreed with “the trial judge, the parties and the intervener, Aboriginal Legal Services (‘ALS’), that an accused’s Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application.”

With regards to a Corbett application, the court explained that “in calibrating the probative value and prejudicial effect of admitting the accused’s prior convictions, trial judges typically consider: (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.”

The court acknowledge that Dale’s “criminal record speaks loudly of an obviously traumatic and troubled childhood and early adulthood.”

The respondent, they noted, “was 19 years of age by the time of trial and had accumulated 29 convictions, the vast majority of which he accrued in youth court.”

“While the respondent advanced many of the same arguments typically heard at a Corbett application, a novel argument was tacked onto the end of his submissions. This argument was that because of the respondent’s Indigeneity, if the jury were to learn about the extent of his criminal record, there was a heightened risk that it could cause an increased degree of prejudice to him,” the judges explained, noting that the trial Crown asserted there were “sufficient trial safeguards already in place to reduce the risk of jurors engaging in discriminatory reasoning based on stereotypes and unconscious bias against Indigenous people.”

On the Corbett ruling at trial, Justice Goodman wanted Dale to “adduce ‘some evidence with respect to his … Indigenous background and how he was disadvantaged or discriminated against.’ ”

In turn, Dale testified that his parents “lived with alcoholism and were unable to care for him or his six siblings. He testified about the abuse that he had suffered and witnessed as a child. He explained that, at two or three years of age, he and his siblings were taken by Child Protective Services. He was put up for adoption and adopted out, only to be returned to foster care.”

Justice Goodman found that, “while the fact of the respondent’s Indigeneity alone was not enough to invoke the application of 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” and that Dale had “met this burden.”

For this reason, Justice Goodman determined that “numerous convictions on the respondent’s record should be excluded.”

In this case, the court noted, the Crown maintained that “there was no evidence to rebut the ‘strong presumption’ that the jurors would assess the respondent’s past convictions without prejudice.”

In response, Dale emphasized that, “despite all of the safeguards in place, there is still a significant risk that harmful biases will be brought to bear on the jury’s deliberative process,” noting Justice Goodman “properly excluded” the assault conviction evidence at trial.

ALS, as the intervener, stressed that “the prejudicial impact of admitting the criminal record of an Indigenous accused feeds stereotypes and biases that can give rise to prejudice not present for a non-Indigenous accused.”

ALS noted that “it is a well-documented fact that Indigenous people are more likely than non-Indigenous people to plead guilty to crimes they did not commit” and therefore contended that “where the defence has established that a past conviction arises from a guilty plea, trial judges should closely examine the nature of the conviction and consider whether to exercise their discretion to exclude it by specifically having regard to the realities of guilty plea wrongful convictions for Indigenous accused persons.”

In their analysis, the judges noted that “Fairness is best served when the accused’s credibility can be properly and accurately scrutinized by the trier of fact,” which “requires trial judges to pay particular attention in a Corbett analysis to the unique circumstances of an Indigenous accused, where those circumstances affect the probative value and prejudicial impact of their criminal record.”

“As will be seen, this particularized Corbett analysis will help guard against the discrimination that, ‘as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice,’ ” they wrote.

“In the context of a trial involving an Indigenous accused, several of the Corbett factors may require further specification in order to put the trier of fact into an adequate position to accurately assess the prejudice and probative value of admitting past convictions,” the judges explained, noting that “For the purposes of the analysis, it does not matter whether the application of the Gladue principles is conceptualized as a separate step in the Corbett analysis or a further specification of the existing Corbett factors — the substance of the analysis will be the same.”

The court stressed that “When weighing probative value, it is necessary for trial judges to place the Indigenous accused’s criminal record within the context in which it has been accumulated, one that corrects for possible systemic biases, stereotypes and assumptions.”

“Accounting for any distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear. This, of course, drives down the probative value of its admission,” the judges added, noting that “While there must be some evidence to support the circumstances that have impacted the accused’s life, much like the evidence led in this case, there need not be a direct causal link established between those circumstances and the past offending conduct that resulted in the conviction.”

“At the end of the day,” the court explained, “trial judges are well-positioned to consider the probity of an Indigenous accused’s convictions within that individual’s own history, including disadvantage resulting from historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination.”

“In assessing the probative value of an Indigenous accused’s convictions, trial judges will continue to take into account all of the well-known and long-applied guiding criteria set out in Corbett. All that is changing is that, when determining the degree to which the conviction will assist in advancing the credibility inquiry, or, the probative strength of the conviction-to-credibility inference, trial judges will now also consider the matter within the context of the discriminatory effects of the historical and current treatment of Indigenous people,” the court added.

Turning to the prejudicial effect, the court explained that “When an Indigenous accused is before the court, racist stereotypes lend considerable credence to the risk of propensity-based reasoning.”

“As a result, when calibrating the prejudice that could result from the admission of prior convictions, trial judges must take notice of the fact that Indigenous people are often the objects of racism outside and inside the criminal justice system,” the court noted, stressing that “it is imperative that the Corbett analysis direct trial judges to consider whether in the context before them, the accused is at elevated risk of prejudice because of racist stereotypes.”

The judges found that, in this case, Justice Goodman “correctly considered the respondent’s Indigenous ancestry, history and personal circumstances, and the broader context of widespread racism experienced by Indigenous people.”

“While it would have been preferable had the trial judge conducted an evidentiary voir dire and not simply left it to defence counsel to elicit relevant evidence during examination-in-chief, no harm was occasioned by how the matter proceeded,” they determined, dismissing the appeal in a unanimous decision released Sept. 26.

Goddard, who represented Dale at trial and on appeal, told The Lawyer’s Daily that they brought a Corbett application because they were “concerned about the fact that Dale had a long criminal record,” and whether it would “bias the jury against him even further.”

He noted that this is the “first time” an appellate court and a trial judge has accepted that “when you're looking at the probative value of the convictions … you have to consider [the] Indigenous background.”

“You have to consider that this is someone who was taken from his family at the age of 3, grew up in foster care, developed issues with drugs, dropped out of school and is fighting to survive, is selling drugs to make money so that he can feed his own addiction and put a roof over his head,” Goddard said of Dale, noting these factors lower the “probative value of the conviction when it comes to the person’s credibility because there's a reason these offences were happening.”

“This is a kid who was put in this horrifically difficult situation. The Court of Appeal has accepted that,” he stressed.

Another issue the Court of Appeal accepted, Goddard explained, is that “when you’re thinking about the prejudicial effect of a criminal record, that analysis also has to be a bit different for an Indigenous person” due to the stereotypes that exist.

Because of this decision, Goddard noted, judges must “consider” an Indigenous person’s background when analyzing a Corbett application.

“That’s a key takeaway. Lawyers need to know that,” he added, noting that lawyers will also need to lead evidence as part of the application.

The decision, Goddard stressed, shows the court “telling us loudly and clearly that we know systemic racism and bias is real. We have to be sensitive to it. We need to be thinking about how these sorts of things factor into an accused person's background” and it needs to affect “decision making at every stage in the criminal justice system.”

Goddard also noted that while the court was specifically addressing Indigenous accused and relevant considerations to be made on a Corbett application, there was “nothing in principle that would seem to necessarily limit the reasoning of the court here to only Indigenous accused.”

It would not be a “stretch,” he added, to apply this reasoning to other racialized clients in the future.

“We know that racism against Black people is real, and we know that the risk of prejudice is higher and that the probative value of [their] criminal record might be lower, and to argue that that should similarly be considered,” he said, noting that the analogies have “already been drawn in other contexts, so it’s ripe to be drawn in the Corbett application process too.”

“Any lawyer who is representing a racialized accused” needs to “be aware of this decision and thinking, ‘can I bring this application in this case and analogize from the ruling in King to specific facts of what of my clients background?’ ” he added.

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or 416-524-2152.

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