R v M.C., 2019 ONCA 502: Gladue meets Corbett?

Justice Watt, writing for the Court of Appeal for Ontario in R. v. M.C., 2019 ONCA 502, allowed the appeal against conviction on the (most narrow possible) basis that the trial judge's negative assessment of the appellant's credibility on account of the appellant’s vaguely-adduced prior "troubles" with “drunk driving” and other driving offences was flawed because "without any details about the number and proximity of the convictions, nothing informed could be said about their impact on testimonial trustworthiness" (paras. 85-86). 

In classic, if not restrained, Watt prose: "Neither counsel asked the appellant about the specifics of any prior convictions. No dates. No offences. No places. No penalties" (para. 29). Indeed, in closing "neither counsel referred to the fact or nature of the appellant’s prior “troubles” as a factor the trial judge should consider in assessing the appellant’s credibility as a witness" yet the judge did anyway, concluding that this reflected a "history of crimes of dishonesty" damaging to his credibility (para. 83).  So no wonder this appeal was allowed, and why am I telling you about this?

The most interesting thing about this case is what the appellant and intervener (Aboriginal Legal Services of Toronto) argued but the Court thoroughly avoided deciding: should Gladue principles be relevant in an assessment of the probative value and prejudicial effect of an Indigenous person’s criminal record given that the record may be rooted in systemic factors, rather than intentional disregard for the law, and might therefore result in a prejudicial inference of testimonial dishonesty? The Court of Appeal summarizes the arguments for and against this idea at paras. 39-40 and 49-51 (…maybe for your next Corbett application in a jury case).

As an reminder, it is helpful to remember that the limited scope of cross-examination of an accused on his criminal record - that it generally “cannot extend to the conduct on which the conviction was based” (para. 55, M.C.) - does not apply to non-accused witnesses: R v Miller, 1998 CanLII 5115 (Ont. C.A.) per Charron J.A. (at paras. 15-25).