Trial judge may consider accused's Indigeneity in criminal records admissibility determination: OCA

Decision dispels controversy about whether Gladue principles apply to trial process

Trial judge may consider accused's Indigeneity in criminal records admissibility determination: OCA
Jonathan Shime says King is an important decision in the courts’ struggle with reconciliation.

The Ontario Court of Appeal has ruled that trial judges may consider an accused’s Indigeneity in determining whether their criminal records are admissible in cross-examination.

“This is an important and helpful legal precedent on an issue that has never been adjudicated and an important piece – albeit just one small piece – of the much larger puzzle involved in making the criminal justice system more aware and more responsible in achieving proper reconciliation,” says Jonathan Shime, a partner with Toronto criminal and regulatory boutique Cooper, Sandler, Shime & Bergman LLP and co-counsel for the accused Dale King in R. v. King.

The OCA’s decision also dispels the controversy as to whether the Gladue principles – the Supreme Court of Canada’s guidance on factors to be taken into account when sentencing Indigenous offenders – apply to the trial process and are not limited to sentencing.

“The court recognized that the discrimination Indigenous people face permeates the justice system and that we can’t turn a blind eye just because the issue arises during a trial,” says Jonathan Rudin, program director and co-counsel for the intervener Aboriginal Legal Services.

The case involved a Crown appeal from a jury’s acquittal of King on a second-degree murder charge, apparently accepting King’s primary argument that he acted in self-defence.

One of the Crown’s grounds of appeal related to the trial judge’s ruling on King’s Corbett application prohibiting cross-examination on his lengthy criminal record. While Ontario Superior Court Justice Andrew Goodman did allow cross-examination on 14 of King’s 29 prior convictions, he prohibited cross-examination on the remaining fifteen.

Among the convictions excluded were five convictions for assault, of which only one occurred when King was an adult. In his initial oral ruling, Goodman stated that “but for” the “Gladue principles,” he “may have indeed” allowed cross-examination on several of the assaults.

“Considering [King’s] indigenous status, I am of the view that cross-examination on crimes of violence, especially those while he was a youth, would add very little, if anything, to the jury’s ability to assess the respondent’s credibility. Despite the best efforts of the jury, that insight could taint their ability to properly assess the evidence, and more importantly the credibility of [the accused].”

After King testified, Goodman released a written ruling on the Corbett application. The OCA wrote, regarding that ruling, that the “trial judge noted 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. The trial judge found that the respondent had met this burden.”

On appeal, the parties agreed that courts hearing a Corbett application should consider the realities of Indigeneity, “including the consequences of overt and systemic racism experienced by Indigenous people.”

Where the parties differed was on the methodology of taking Indigeneity into account.  

Ultimately, the OCA rejected the Crown’s submission that a direct causal link was required between a conviction and the racism alleged before cross-examination could be prohibited.

“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.”

For his part, Goodman had correctly considered King’s Indigenous ancestry, history and personal circumstances and the 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.”

Overall, there was no error in the trial judge’s approach.

“Indeed, the trial judge navigated a carefully balanced path that demonstrated his keen appreciation for how [King’s] Indigeneity, placed in its proper context and considered alongside the other traditional Corbett factors, weighed in favour of numerous convictions being excluded.”

The OCA, therefore, dismissed the Crown’s appeal and upheld King’s acquittal.

Rudin believes King opens an avenue for consideration of Gladue principles in other circumstances.

“For example, defence counsel might ask the court to consider Gladue when the Crown is seeking a Vetrovec warning [the special warning required when considering evidence from disreputable witnesses] against an Indigenous witness.”

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