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R. v. Shae, 2017 NWTSC 3 S-1-CR-2015-000069 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - MITCHELL SHAE _________________________________________________________ Transcript of the Ruling delivered by The Honourable Justice L.A. Charbonneau, sitting with a jury, at Norman Wells, in the Northwest Territories, on the 19th day of May, 2016. _________________________________________________________
APPEARANCES: Mr. D. Praught: Counsel for the Crown Mr. J. Walsh: Counsel for the Accused (Charges under s. 271 of the Criminal Code of Canada) No i n f o r m a t i o n s h a l l be p u b l i s h e d in any d o c u m e n t or b r o a d c a s t or t r a n s m i t t e d in any way w h i c h c o u l d i d e n t i f y the v i c t i m or a w i t n e s s in t h e s e p r o c e e d i n g s p u r s u a n t to s . 486 . 4 of the Criminal Code of Canada
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1 THE COURT: I am not going to say a lot 2 more than what I said when I ruled on this at the 3 time the application was made. But just so the 4 record is a little bit more complete, I will say 5 that in dealing with this Corbett application, I 6 essentially followed the same principles as the 7 ones that I followed in my decision in R. v. 8 Gargan, 2012 NWTSC 42. I will not repeat what I 9 said in that decision. I adopt what I said about 10 the applicable principles at paragraphs 4 to 12 11 in that decision. 12 In this particular application, Mr. Shae's 13 record include a number of convictions spread out 14 over a period of about eight years. There are a 15 number of convictions for break and enter, 16 mischief, theft, breaches of court orders; and, 17 at different points in the record, there are also 18 assault convictions. 19 My understanding of the defence position on 20 the Corbett application was that the assault 21 convictions were the only ones that defence was 22 concerned about. It was not an application to 23 prevent cross-examination on the criminal record 24 completely. Rather it was an application to have 25 those three assault convictions edited out of the 26 record. 27 Although the Crown made full submissions on A.C.E. Reporting Services Inc. 2
1 the Corbett application, the Crown, at the 2 outset, indicated that it was less concerned 3 about the prospect of the assault convictions 4 being edited out of the record than it would have 5 been about being prevented from cross-examining 6 Mr. Shae on the complete record. As such, this 7 was not the most hotly contested Corbett 8 application that I have had occasion to hear. 9 Just to reiterate what I said yesterday, I 10 think the Crown is correct in saying that the 11 starting point of his application is that 12 cross-examination of the record is permitted 13 under the Evidence Act, and it is only when the 14 prejudicial effect of that cross-examination 15 outweighs the probative value of the record that 16 it should be prevented. 17 In this case, the convictions that defence 18 asked me to edit out are convictions for a type 19 of offence that has very little probative value 20 on credibility. 21 Moreover, taking those convictions out of 22 the record would not create an artificial gap or 23 a wrong impression or a potential distortion for 24 the jury about the pattern of criminal behaviour 25 that is evidenced by the record over the years. 26 I also considered the fact that the matter 27 in which the defence challenged the Crown's case A.C.E. Reporting Services Inc. 3
1 in this particular trial was not focused on 2 criminal records of Crown witnesses. Editing out 3 some of the convictions on Mr. Shae's record 4 would not create the kind of imbalance that the 5 case law talks about when the credibility of 6 Crown witnesses has been attacked on the basis of 7 criminal records. 8 Those were the reasons why I concluded, on 9 the whole, that the factors set out in Corbett 10 weighed in favour of permitting the 11 cross-examination but editing out those three 12 assault convictions. 13 The only other comment I want to make goes 14 back to something I also said earlier this week: 15 It was suggested in submissions that perhaps one 16 way of dealing with this issue would be to simply 17 refer to the dates of the convictions for the 18 assault charges and simply get Mr. Shae to 19 acknowledge that on those dates he had been 20 convicted of a criminal offence. And, as I said 21 earlier this week, I have seen this done in 22 another case recently which proceeded without a 23 jury. 24 The concern I would have had in doing this 25 and the concern I would generally have in doing 26 this with a jury is that if the jury hears a 27 person being cross-examined specifically on A.C.E. Reporting Services Inc. 4
1 certain types of offences such as the theft, the 2 mischief, failures to comply with court orders, 3 and then, all of a sudden, there is reference to 4 someone being convicted of a "criminal offence" 5 without specifying what it is, I think this 6 raises a very real risk that the jury will wonder 7 why they are not hearing about the details of 8 that particular conviction. It could lead to 9 speculation that could be very prejudicial to the 10 accused person. 11 In addition to that, the law requires judges 12 to tell juries, in instructions, that in deciding 13 how much weight to attribute to the criminal 14 record in their assessment of credibility, they 15 have to consider the type of offence the person 16 has been convicted of. So I do not know how 17 helpful it is for a trier of fact to hear about 18 the fact that someone has been convicted of a 19 "criminal offence", because then there is really 20 no information to help them decide whether this 21 is a conviction that is actually relevant to 22 credibility or not relevant to credibility. 23 Those were the reasons why I declined to 24 adopt that approach. 25 ----------------------------------------------------- 26 27
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1 CERTIFICATE OF TRANSCRIPT 2 3 I, the undersigned, hereby certify that the 4 foregoing pages are a complete and accurate 5 transcript of the proceedings taken down by me in 6 shorthand and transcribed from my shorthand notes 7 to the best of my skill and ability. 8 Dated at the City of Edmonton, Province of 9 Alberta, this 24th day of January, 2017. 10 Certified Pursuant to Rule 723 11 Of the Rules of Court 12 13
15 __________________________ 16 Jenna Mearns, CSR(A) 17 Court Reporter 18 19 20 21 22 23 24 25 26 27
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