



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C., 2019 ONCA 502

DATE: 20190618

DOCKET: C63699

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Louis P. Strezos, Promise Holmes Skinner and Kaleigh
    Davidson, for the appellant

Candice Suter, for the respondent

Jonathan Rudin and Melissa Atkinson, for the intervener Aboriginal
    Legal Services of Toronto

Heard: September 25, 2018

On appeal from the conviction entered by Justice Clayton
    Conlan of the Superior Court of Justice on February 1, 2017, with reasons
    reported at 2017 ONSC 776, and from the sentence imposed on May 1, 2017, with
    reasons reported at 2017 ONSC 2667.

Watt J.A.:

[1]

A.R. and N.A. are brothers. Each alleged that a relative, M.C.,
    committed sexual offences on him. It happened, each said, when each was very
    young.

[2]

A.R. recalled two incidents when he was between five and seven years
    old. N.A. alleged three incidents when he was between six and ten years old.

[3]

M.C. testified. He said that the incidents A.R. and N.A. alleged never
    occurred.

[4]

The judge who presided at M.C.s trial was not satisfied beyond a
    reasonable doubt about the offences that A.R. alleged, but was convinced about
    those N.A. said took place.

[5]

M.C. (the appellant) appeals. He says that the convictions are flawed
    because the judge made mistakes in his assessment of the evidence introduced at
    trial. He also contends that the sentence imposed is unfit.

[6]

As I will explain, I am satisfied that the appellants convictions
    cannot stand. Given the manner in which trial counsel adduced evidence of the
    appellants criminal antecedents, the trial judge could not make an informed
    assessment of its impact on the appellants credibility as a witness. He thus
    erred in relying on that evidence in rejecting the appellants testimony. In
    these circumstances, I do not reach the appeal from sentence.

The Background Facts

[7]

To appreciate the grounds of appeal advanced and conclusion reached, a
    brief reference to the circumstances of the alleged offences and the chronology
    of their disclosure will suffice.

The Principals

[8]

N.A. and A.R. are brothers. They lived with their parents on the Saugeen
    First Nation.

[9]

The appellant, who is significantly older than N.A and A.R., also lived
    with his parents on the Saugeen First Nation. The appellants mother is the
    paternal grandmother of N.A. and A.R.

[10]

N.A.
    said the offences happened when he visited the appellants home. Two took place
    inside the house, one in a detached garage on the property. They occurred between
    June 1, 2001 and December 31, 2005.

The Alleged Offences

[11]

N.A.
    testified that the first incident occurred when he was six or seven years old.
    It happened during the summer when N.A. was alone in the appellants bedroom. The
    appellant tickled N.A. on the bed and asked if N.A. wanted to remove his shirt
    because it was hot. N.A. did so. The appellant then took out his penis and forced
    N.A. to stroke it and suck his dick. The appellant turned N.A. around, put
    on a condom, and had anal intercourse with N.A. The appellant told N.A. to keep
    what had happened a secret.

[12]

The
    second incident happened in the fall when N.A. was between the ages of eight
    and ten years old. N.A. and his family were at the appellants home for
    Thanksgiving dinner. N.A. was asked to go to the detached garage to call the
    appellant for dinner.

[13]

N.A.
    went to the garage where the appellant was working on a stock car. The
    appellant asked N.A. to help him fix a tail light on the vehicle. N.A. explained
    that after he had helped with the tail light repair, the appellant turned me
    around and he stuck his finger in my ass. The appellant then leaned N.A.
    against the stock car, put his penis inside N.A. and eventually asked N.A. to
    stroke his penis until he (the appellant) ejaculated.

[14]

The
    third incident took place in the living room of the appellants home.  N.A. was
    nine or ten years old. N.A.s grandparents (the appellants parents) had gone
    to Tim Hortons for coffee. When N.A. came out of the bathroom, he noticed that
    the appellant had taken his penis out of his pants. He pulled N.A. onto his
    lap. A few minutes later, N.A.s grandparents returned and the anal intercourse
    ceased.

The Initial Disclosure

[15]

The
    initial disclosure narrative involved A.R. and was somewhat inconsistent. What
    does appear clear, however, is that after a verbal altercation between A.R. and
    the appellant, perhaps in November 2013, A.R. disclosed to his mother that the
    appellant had raped him. A.R.s prior disclosures were of particularized
    abuse without any mention of the identity of the abuser.

[16]

According
    to N.A.s mother, when she and A.R. arrived home from the appellants house,
    N.A. asked why A.R. was so upset. A.R. disclosed the abuse by the appellant to
    N.A. who responded [m]om, he raped me too.

[17]

N.A.s
    recollection is different. He recalled not having disclosed the abuse prior to
    police attendance at their home on March 2, 2014.

The Police Disclosure

[18]

On
    March 2, 2014, the complainants mother called police to report a dispute involving
    her sons about marijuana use and a trip to Tim Hortons. An officer attended,
    found the complainants mother in a very emotional state, and learned that the
    dispute was about her sons having been hurt as little boys. The officer asked
    whether the boys had been hurt physically or sexually. Their mother responded
    sexually, by a family member.

[19]

Both
    A.R. and N.A. agreed to provide a formal statement and to accompany the officer
    to the local police detachment to do so. While awaiting another officer who
    would conduct a formal interview, both A.R. and N.A. told the responding
    officer that the appellant, their uncle, used to make them do stuff, sexual
    stuff when they were little boys. This had happened at their grandmothers
    house. N.A. told the officer that full penetration had occurred when he (N.A.)
    was five, turning six.

The Evidence of M.C.

[20]

The
    appellant testified that he had lived his entire life on the Saugeen First
    Nation. He denied any suggestion that he ever touched A.R. or N.A.
    inappropriately or played with them in a sexual way. His evidence was neither
    more nor less than a simple and flat denial of the allegations.

The Grounds of Appeal

[21]

On
    the appeal from conviction, the appellant advances two grounds of appeal. Each
    has to do with the manner in which the trial judge scrutinized the evidence
    adduced at trial, especially the testimony of the appellant, in reaching his
    conclusion that the appellants guilt had been established beyond a reasonable
    doubt.

[22]

As
    I would paraphrase them, the appellant says that the trial judge erred in law:

i.

in his treatment of the appellants previous convictions of driving
    offences as a significant factor in assessing and rejecting the appellants
    evidence; and

ii.

in applying a stricter level of scrutiny in his assessment of the
    appellants testimony than he applied to his assessment of N.A.s evidence.

[23]

On
    the appeal from sentence, the appellant contends that the trial judge erred in:

i.

requiring a causal connection between abuse experienced by the appellant
    and the applicability of the principles in
R. v. Gladue
, [1999] 1 S.C.R. 688
in determining a
    fit sentence;

ii.

failing to find that the appellant had been subjected to abuse as a
    child; and

iii.

failing to instruct himself on the impact that background and systemic
    factors, as well as intergenerational trauma, had on the appellant.

The Appeal from Conviction

Ground #1: The Criminal Record as a Credibility Factor

[24]

The
    first ground of appeal, as it was argued by the parties and the intervener,
    Aboriginal Legal Services (ALS), involves the interplay between the relevance
    of prior convictions to the credibility of an accused who testifies and the
    influence, if any, of
Gladue
principles on that assessment.

[25]

First
    of all, some background.

The Testimony of the Appellant

[26]

In
    giving evidence on his own behalf, the appellant was questioned by his own
    counsel and cross-examined by the Crown about drinking, driving and the lack of
    a drivers licence.

[27]

The
    appellant acknowledged a drinking problem when he was younger. He said that he
    had gone to jail as a result of drinking and driving charges. His longest
    period of incarceration had been 90 days. He had also been placed on probation.
    He admitted that he did not have a drivers licence and did not need one to
    drive stock cars at nearby Sauble Speedway.

[28]

In
    cross-examination, the appellant acknowledged that he got into trouble three
    or four times for drunk driving. On four or five other occasions the
    appellant said he had been convicted for driving a car when you werent
    supposed to, although he could not recall when these troubles had occurred.

[29]

Neither
    counsel asked the appellant about the specifics of any prior convictions. No
    dates. No offences. No places. No penalties.

The Arguments at Trial

[30]

In
    closing argument at trial, neither counsel referred to the fact or nature of
    the appellants prior troubles as a factor the trial judge should consider in
    assessing the appellants credibility as a witness.

[31]

The
    trial judge did not ask any questions or invite any submissions about the
    relevance of the appellants prior convictions to an assessment of his
    credibility as a witness or the weight, if any, to be assigned to them for that
    purpose.

The Reasons of the Trial Judge

[32]

The
    trial judge concluded that he did not believe the appellants denial of the
    conduct alleged by N.A. Nor did the appellants testimony raise a reasonable
    doubt about his guilt.

[33]

The
    trial judge began his assessment of the appellants testimony by pointing out
    a few things that troubled him, aside from the fact that the appellants
    denials were irreconcilable with N.A.s evidence, which the trial judge
    accepted. Among the trial judges concerns were:

i.

carelessness in responding to questions inviting comparison between two
    sketches of the inside of the appellants home;

ii.

a lack of basic common sense;

iii.

an emphatic denial as ever having been alone with either complainant;
    and

iv.

the appellants history of crimes of dishonesty.

[34]

In
    connection with the history of crimes of dishonesty, the trial judge said:

Third and finally, I am concerned about M.C.s history of
    crimes of dishonesty. He admitted in cross-examination to have chalked-up four
    or five convictions for driving while prohibited. That is not surprising, since
    he has accumulated multiple convictions for drunk driving. A person who
    repeatedly does what he is prohibited from doing shows a callous disregard for
    the rules. It is a form of dishonesty.

The Arguments on Appeal

[35]

The
    appellant says that in
R. v. Corbett
, [1988] 1 S.C.R. 670, the Supreme
    Court of Canada recognized a discretion to exclude evidence of prior convictions
    if their probative value on the issue of credibility is overborne by their
    prejudicial effect. This discretion is informed by several factors. No single
    factor is dispositive, no list of factors complete.

[36]

Among
    the factors which may engage this exclusionary discretion under
Corbett
are the nature of the conviction as it bears on credibility, on the one hand,
    and its potential for prejudice through prohibited reasoning on the other; the proximity
    of the conviction to the time of testimony; the manner in which the defence has
    cross-examined Crown witnesses. What these factors signal is a focused inquiry
    on the nature of the conviction and its temporal connection to the time at
    which the accused testifies.

[37]

The
    appellant accepts that in a jury trial, the
Corbett
discretion is
    invoked by a motion at the close of the Crowns case and before the defence is
    required to make its election about calling evidence. The purpose of the
    inquiry is to determine which prior convictions have a sufficient bearing on
    the testimonial trustworthiness of the accused to outweigh any prejudice that
    may result by inviting propensity reasoning. These convictions may be put to
    the accused should she or he decide to testify. They will be the subject of a
    specific instruction by the trial judge about their use during jury
    deliberations.

[38]

The
    appellant does not suggest that the formal
voir dire
procedure
    followed in jury trials should be followed in judge alone trials. But he does
    contend that the necessary sorting out must be done in closing argument
    followed by proper self-direction or instruction. The failure to do so here
    resulted in improper reliance on dated convictions which lacked any persuasive
    force on testimonial trustworthiness, the only issue on which they had any
    relevance.

[39]

The
    appellant also invokes
Gladue
principles as relevant in an assessment
    of the probative value and prejudicial effect of an Indigenous persons
    criminal record. A record rooted in systemic factors, rather than as
    intentional disregard for the law, would result in a prejudicial inference of
    testimonial dishonesty. In recent years,
Gladue
principles have been
    extended beyond sentencing proceedings. No reason in logic or policy forecloses
    extension of
Gladue
principles to the discretion for which
Corbett
provides. The appellant asks this court to receive as fresh evidence the
Gladue

report prepared for his sentencing to provide an evidentiary foundation for
    this argument.

[40]

In
    the end, the appellant says, the trial judge erred in relying on the
    appellants criminal record in assessing his credibility. The convictions were
    dated and remote. The judge did not give counsel an opportunity to make
    submissions about the probative value of the record on the appellants
    credibility as a witness. And the judge did not take into account the impact of
    systemic factors on the accumulation of convictions when gauging their
    probative value.

[41]

The
    respondent rejects the imposition of any obligation on the trial judge to
    invite submissions or to self-instruct on the use of prior convictions in
    assessing the appellants trustworthiness as a witness. When an accused in a
    criminal trial assumes the role of a witness in the proceedings, his or her
    prior convictions are presumptively relevant and thus admissible. Provided the
    accused has not put his or her character in issue, the prior convictions are of
    limited admissibility irrespective of the mode of trial  namely, as a factor
    to be taken into account in assessing the credibility of the accused as a
    witness.

[42]

Where
    the accused alleges that his or her prior convictions have no probative value
    in an assessment of his or her credibility as a witness, it is incumbent on the
    accused to object to their admissibility. This is so because Parliament has
    decided by its enactment of s. 12 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 (
CEA
),
that prior convictions are relevant
    and
prima facie
admissible as a factor in assessing an accuseds
    credibility as a witness. In a judge alone trial, although no
voir dire
is required as in a case tried by a jury, an objection is nonetheless required when
    an accused disputes the relevance, and thus admissibility, of prior convictions
    on testimonial trustworthiness.

[43]

In
    this case, the respondent says, convictions for driving while disqualified are
    offences against the administration of justice. These are offences that are
    relevant to the trustworthiness of an accused as a witness at trial, as they
    have a direct bearing on whether an oath to tell the truth will bind the
    conscience of the witness. These offences are entitled to some weight in the
    credibility assessment. And the weight assigned to them by the trial judge is
    owed deference in this court.

[44]

The
    respondent takes issue with the relevance of
Gladue
principles to the
    analysis required by
Corbett
. The
Gladue
report was not
    prepared for this purpose, nor was any argument raised at trial of the nature
    advanced here. The respondent submits it is not in the interests of justice to
    permit the use of the
Gladue
report for this purpose or to permit the
    appellant, supported by ALS, to advance the argument for the first time in this
    court.

[45]

To
    advance the argument on the evidentiary foundation provided by the
Gladue
report, the appellant must satisfy the court that the report should be admitted
    as fresh evidence. But, the respondent says, the appellant cannot satisfy the
    admissibility and cogency requirements which must be met according to the
    authorities.

[46]

The
    report consists of at least double hearsay, neither level of which would
    qualify for reception under the principled approach. The relevant statements
    are unsworn, edited and incomplete. In addition, the respondent continues, the
    report is not relevant to a decisive issue, not reasonably capable of belief,
    and not sufficiently probative to have affected the result at trial. Further, although
    due diligence is not a condition precedent to the admissibility of fresh
    evidence on appeal, it is nonetheless important in assessing whether the
    interests of justice require the admission of this evidence. In the absence of
    any scent of a claim of ineffective assistance of counsel, this evidence could
    have been gathered for introduction at trial. It was not. Its absence remains
    unexplained. It should not be admitted in this court.

[47]

The
    respondent also disputes the appellants right to challenge, for the first time
    in this court, the admissibility of his criminal record. Trial counsel
    introduced the fact and nature of the prior convictions at trial. No
Corbett
application was brought. Nor did the appellant seek its functional equivalent 
    a self-instruction about the lack of probative value of some or all of the
    prior convictions. Further, the influence of
Gladue
on the discretion
    recognized in
Corbett
was never mentioned at trial.

[48]

According
    to the respondent, the appellant has failed to establish the conditions
    precedent necessary to oust the general prohibition against raising issues for
    the first time in this court. Contrary to the argument advanced by ALS, the
    respondent says there is no categorical exception to the prohibition when
Gladue

principles are being argued. The evidentiary record is insufficient to
    permit this court to fully, effectively and fairly determine the issue first
    raised here. At trial, counsel made a strategic decision to introduce those
    portions of the appellants record of which complaint is now made. Those
    convictions gained no prominence in the appellants cross-examination by the
    Crown or in closing submissions by either counsel. It ill lies in the mouth of
    the appellant to complain now about their admissibility. No miscarriage of
    justice will occur if the proposed argument is not advanced.

[49]

The
    respondent also challenges the appellant and intervener on the merits of the
    claim that the
Corbett
discretion ought to be infused with
Gladue
principles. Those principles and factors, the respondent says, are tied
    intimately to the highly individualized process of sentencing through their
    relationship with the moral culpability of the offender and the sanctions
    appropriate to the offence of which she or he has been convicted.

[50]

The
    respondent acknowledges that the application of
Gladue
principles has
    extended beyond the traditional sentencing scheme. However, the Supreme Court
    of Canada has confined the principles to other sentencing issues, such as the
    dangerous and long-term offender regimes and the parole ineligibility provisions
    for life sentences. Further, that Court has declined to extend these principles
    to other procedural contexts, such as the representativeness of jury rolls and
    decisions made by Crown prosecutors. Admittedly, this court has gone somewhat
    further in its application of
Gladue
principles outside the sentencing
    context, but the subjects all have an immediate impact on the liberty of an
    Indigenous person.

[51]

In
    the end, the respondent contends,
Gladue
principles do not apply to
    credibility assessments based in part upon an accuseds previous convictions.
    The probative value of prior convictions is a variable, a function of factors
    such as the number of previous convictions; the nature of the offences; and the
    proximity of those convictions to the time of giving testimony. There is neither
    elucidation of the circumstances that underpin the prior convictions, nor
    consideration of those circumstances in assessing the impact of the convictions
    on the trustworthiness of the accused as a witness. The inference of
    testimonial untrustworthiness is derived from the fact, nature and recency of
    the convictions, not the moral blameworthiness of the offender who committed
    them, the issue to which
Gladue
principles are directed.

The Governing Principles

[52]

The
    determination of this ground of appeal involves the interplay of principles
    that govern:

i.

the admissibility and use of prior convictions as factors relevant to an
    assessment of the testimonial trustworthiness of an accused who testifies;

ii.

the circumstances in which an appellate court will permit an appellant
    to advance an argument not made at trial;

iii.

the circumstances in which an appellate court will receive fresh
    evidence in support of a ground of appeal; and

iv.

the extent to which
Gladue
principles apply to a discretionary
    decision about the admissibility of evidence.

The Admissibility of Previous Convictions

[53]

Section
    12(1) of the
CEA
authorizes questioning of a witness about whether the
    witness has been convicted of any offence. The provision reflects a legislative
    judgment by Parliament that evidence of prior convictions is relevant to a
    witness credibility; in other words, to the testimonial trustworthiness of the
    witness:
Corbett
, at p. 685, per Dickson C.J., and p. 720, per La
    Forest J. (dissenting);
R. v. Brown
(1978), 38 C.C.C. (2d) 339 (Ont.
    C.A.), at p. 342.

[54]

The
    rationale upon which s. 12(1) admits prior convictions in relation to
    credibility is that the character of the witness, evidenced by the prior conviction(s),
    is a relevant fact in assessing the testimonial reliability of the witness:
Corbett
,
    at pp. 685-86, citing
R. v. Stratton
(1978), 42 C.C.C. (2d) 449 (Ont.
    C.A.), at p. 461.

[55]

Courts
    have been vigilant to circumscribe the extent to which the Crown may use prior
    convictions of an accused who testifies. Questioning is limited to the facts of
    the conviction, including the offence of which the accused was convicted; the
    date and place of the conviction; and the punishment imposed:
Corbett
,
    at pp. 696-97;
Stratton
, at pp. 466-67;
R. v. Laurier

(1983),
    1 O.A.C. 128 (C.A.), at p. 130. The cross-examination cannot extend to the
    conduct on which the conviction was based, at least in cases where the accused
    has not put his or her character in issue, or to whether the accused testified
    at trial:
Corbett
, at pp. 696-97;
Stratton
, at pp. 466-67.

[56]

The
    weight to be assigned to prior convictions in assessing the trustworthiness of
    the accused as a witness is a variable, not a constant. For example,
    convictions of offences involving dishonesty or false statements have a greater
    bearing on whether an accused witness is likely to be truthful:
Brown
,
    at p. 342;
Corbett
, at pp. 720-21, per La Forest J. (dissenting).
    Similarly, offences demonstrative of a disregard for court orders or the
    administration of justice:
R. v. Gayle
(2001), 154 C.C.C. (3d) 221
    (Ont. C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359;
R.
    v. Thompson
(2000), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31.

[57]

In
    general terms, the probative value of prior convictions with respect to the
    testimonial trustworthiness of an accused witness varies with the nature and
    number of prior convictions and their proximity to the time when the accused
    witness is giving evidence:
Corbett
, at pp. 720-21, per La Forest J.
    (dissenting);
Brown
, at p. 342.

[58]

A
    trial judge has a discretion to exclude evidence of previous convictions when
    the probative value of those convictions on the issue of testimonial
    trustworthiness is exceeded by their prejudicial effect. This discretion
    represents an exception to the general inclusionary rule, which follows from
    Parliaments legislative determination in enacting s. 12(1) of the
CEA,
that prior convictions are relevant to a witness testimonial trustworthiness:
Corbett
,
    at p. 697, per Dickson C.J., and pp. 720-22, 739-40, per La Forest J.
    (dissenting).

[59]

No
    closed list of factors informs the exercise of the exclusionary discretion for
    which
Corbett
provides. But some are acknowledged as relevant. The
    nature of the convictions. The proximity or remoteness of the convictions to
    the time of the testimony. Any similarity between the previous convictions and
    the offences charged. And potentially, the need to maintain a balance between
    the position of the accused and that of a Crown witness whose credibility has
    been impeached on the basis of prior convictions or otherwise:
Corbett
,
    at pp. 740-44, per La Forest J. (dissenting);
Brown
, at p. 342;
R.
    v.

McManus
, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.

[60]

To
    invoke the exclusionary discretion in a jury trial, an accused applies at the
    conclusion of the case for the Crown for an order restricting the number of
    convictions on which the accused may be questioned should she or he testify:
R.
    v. Underwood
, [1998] 1 S.C.R. 77, at paras. 7-9. In a trial without a
    jury, the need for such a formal application may be questionable: see
R. v.
    A.B.
,

2016 ABQB 733, at para. 33.

First Time Arguments

[61]

As
    a general rule, appellate courts will
not
permit an issue to be raised
    for the first time on appeal. The rule is grounded on several concerns:

i.

prejudice to the opponent who lacks the opportunity to respond and
    adduce evidence at trial;

ii.

absence of a sufficient record from which to make findings of fact
    essential to a proper determination of the issue;

iii.

societal interest in finality and the expectation that criminal cases
    will be disposed of fairly and fully at first instance; and

iv.

the important responsibility of defence counsel to make decisions that
    represent a clients best interests and to advance all appropriate arguments
    throughout the trial.

See
R. v. Reid
, 2016 ONCA 524, 338 C.C.C. (3d)
    47, at paras. 39-40, leave to appeal refused, [2016] S.C.C.A. No. 432, citing
R.
    v. Warsing
, [1998] 3 S.C.R. 579, at paras. 16-17, per LHeureux-Dubé J. (dissenting
    in part).

[62]

A
    party who seeks to raise a new issue on appeal must satisfy the appellate court
    that:


i.

the evidentiary record is sufficient to permit the appellate court to
    fully, effectively and fairly determine the issues raised on appeal;


ii.

the failure to raise the issue at trial was not due to tactical reasons;
    and


iii.

no miscarriage of justice will result from the refusal to raise the new
    issue on appeal.

See
Reid
, at paras. 42-43, citing
R. v.
    Brown
, [1993] 2 S.C.R. 918, at p. 927, per LHeureux- Dubé J. (dissenting).

[63]

A
    decision whether to grant or refuse leave to a party to advance an argument for
    the first time on appeal involves the exercise of discretion informed by a
    balancing of the interests of justice as those interests affect all parties:
Reid
,
    at para. 44.

Fresh Evidence on Appeal

[64]

Appellate
    courts may receive evidence on an appeal from conviction where the court
    considers it in the interests of justice to do so. This broad discretion, for which
    s. 683(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
provides, takes into account an appellants
    interest in avoiding a miscarriage of justice by having the appellate court
    consider all evidence relevant to the reliability of the conviction. But it also
    considers the broader societal interest in maintaining the integrity of the
    criminal justice system by respecting the finality of trial verdicts and
    acknowledging the respective functions and expertise of trial and appellate
    courts:
R. v. Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 64.

[65]

A
    party who proffers evidence on appeal germane to a fact in issue at trial must
    be able to provide a satisfactory response to three questions:


i.

Is the evidence admissible under the operative rules of evidence?


ii.

Is the evidence sufficiently cogent that it could reasonably be expected
    to have affected the verdict?


iii.

What explanation, if any, is offered for the failure to adduce the
    evidence at trial and should that explanation affect the admissibility of the
    evidence on appeal?

See
R. v. Truscott
, 2007 ONCA 575, 225 C.C.C.
    (3d) 321, at para. 92;
Reeve
, at para. 66.

[66]

The
    first requirement 
admissibility
 is straightforward. The evidence
    proposed for admission on appeal must satisfy the governing admissibility rules
    of the law of evidence. This includes the hearsay rule:
R. v. Manasseri
,
    2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 204, leave to appeal refused,
    [2016] S.C.C.A. No. 513.

[67]

The
    second requirement 
cogency
 asks three questions:

i.

Is the
    evidence
relevant
in that it bears upon a decisive or potentially
    decisive issue at trial?

ii.

Is the evidence
credible
in that it is reasonably capable of belief?

iii.

Is the evidence
    sufficiently
probative
that it could reasonably, when taken with the
    other evidence adduced at trial, be expected to have affected the result?

See
Manasseri
, at para. 205.

[68]

Fresh
    evidence tendered to challenge a factual finding made at trial or to undermine
    the credibility of a crucial witness or the reliability of a witness testimony
    must be sufficiently strong to compel the ordering of a new trial, or else it
    will not be received on appeal:
Manasseri
,
at para. 217, citing
R. v. Maciel
, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 49, leave
    to appeal refused, [2007] S.C.C.A. No. 258. The cogency inquiry requires a
    qualitative assessment of the proposed evidence, measuring its probative
    potential considered in the entirety of the evidence admitted at trial and on
    appeal:
Manasseri
, at para. 213.

[69]

The
    final component 
due

diligence
 is not a precondition to the
    reception of fresh evidence on appeal. Due diligence enters play when the
    requirements of admissibility and cogency have been satisfied. Then, but only
    then, due diligence becomes a factor to consider in deciding whether the
    interests of justice, especially the need for finality, warrant reception of
    the evidence:
Manasseri
, at paras. 206, 218-220;
Maciel
, at
    para. 50;
Reeve
, at para. 68.

The
Gladue
Principles

[70]

In
R. v. Gladue
, the issue was the proper
    interpretation and application of the
sentencing
principle contained
    in s. 718.2(e) of the
Criminal Code
,
    which states:

718.2
A court that imposes a sentence shall also take
    into consideration the following principles:



(e)
all available sanctions, other than
    imprisonment, that are reasonable in the circumstances and consistent with the
    harm done to victims or to the community should be considered for all
    offenders, with particular attention to the circumstances of Aboriginal
    offenders.

[71]

The
Gladue
court concluded that s. 718.2(e) was more than simply a
    re-affirmation of existing sentencing principles. The
remedial
component of the provision has two aspects  codification of a sentencing
    principle and a direction to sentencing courts to undertake the sentencing of
    Aboriginal offenders differently, in order to endeavour to achieve a truly fit
    and proper sentence in the particular case:
Gladue
, at para. 33.

[72]

The
    inclusion of the words with particular attention to the circumstances of
    Aboriginal offenders means that sentencing judges must pay particular
    attention to those circumstances because they are unique and different from
    those of non-Aboriginal offenders, such that imprisonment may be a less
    appropriate or less useful sanction for Aboriginal offenders:
Gladue
,
at para. 37.

[73]

The
    purpose of s. 718.2(e) is to respond to the problem of overincarceration in
    Canada and, in particular, to the more acute problem of the disproportionate
    incarceration of Aboriginal peoples. Section 718.2(e) and other provisions of
    Part XXIII encourage sentencing judges to apply principles of restorative
    justice alongside or in lieu of other, more traditional sentencing principles
    when making sentencing decisions:
Gladue
, at para. 50.

[74]

In
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court
    made it clear that
Gladue
principles apply to the sentencing of
    Aboriginal offenders for breaching a long-term supervision order (LTSO).
    Systemic and background factors may bear on the culpability of an offender, to
    the extent that they shed light on the offenders moral blameworthiness. Many
    Aboriginal offenders find themselves in situations of social and economic
    deprivation with a lack of opportunities and limited options for positive
    development. These constrained circumstances will rarely, if ever, nullify the
    voluntary nature of their conduct, thus their criminal liability. But these
    circumstances may diminish their moral culpability, an important consideration
    in the fundamental principle of sentencing  proportionality:
Ipeelee
,
    at para. 73.

[75]

The
    decisions in
Gladue
and
Ipeelee
are about the
sentencing
obligations of judges, the requirement that they craft a proportionate sentence
    for Aboriginal offenders:
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R.
    167, at para. 25.

[76]

These
    principles do not extend to prosecutorial decisions that have the effect of
    limiting judicial sentencing options:
Anderson
, at para. 25. Nor do
    they have any relevance to the states obligation to make reasonable efforts to
    compile jury rolls by random selection from lists that draw from a broad
    cross-section of society and deliver jury notices to those who have been
    randomly selected:
R. v. Kokopenace
, 2015 SCC 28, [2015] 2 S.C.R. 398,
    at para. 98. Beyond the sentencing context, the reach of these principles has
    been limited:
Anderson
, at paras. 26-28.

The Principles Applied

[77]

As
    I will explain, I would give effect to the ground of appeal arising from the
    trial judges use of the criminal record, quash the convictions entered at
    trial and order a new trial on the counts alleging offences against N.A.

[78]

In
    an early portion of his reasons, the trial judge recorded his task in
    connection with the evidence of the appellant. He wrote:

M.C. testified at trial. He denied any sexual contact of any
    kind between him and either boy. He denied all of the specific allegations put
    forward by the boys in terms of each incident that they described.

If I believe the accused, I must acquit him of the charges.  If
    I do not necessarily accept his evidence but find that it leaves me with a
    reasonable doubt of his guilt, I must acquit him. Even if I am not left with a
    reasonable doubt as a result of the accuseds evidence, I must find him guilty
    only if the rest of the evidence at trial that I do accept persuades me of his
    guilt beyond a reasonable doubt.

[79]

After
    a lengthy summary of the allegations of both complainants, the trial judge
    began his analysis with what he termed The Bottom Line:

The Bottom Line

I do not believe the accuseds denials. Further, I am not left
    with a reasonable doubt as a result of the accuseds evidence.

Regarding the evidence of A.R., as much as I feel great empathy
    for the young man, I cannot safely rely upon his evidence.

As for N.A., I found him to be a credible and reliable witness.
    I accept his evidence as to what M.C. did to him.

[80]

The
    trial judge then turned to the testimony of the appellant. He began:

Aside from the fact
    that M.C.s denials are irreconcilable with the evidence of N.A., whose
    evidence I accept, I am troubled by a few things about the evidence of the
    accused.

[81]

The
    trial judge then proceeded to explain why he did not believe the appellants
    evidence and why that evidence did not raise a reasonable doubt about the
    appellants guilt. As noted above, among his reasons was the appellants
    history of crimes of dishonesty:

Third and finally, I
    am concerned about M.C.s history of crimes of dishonesty. He admitted in
    cross-examination to have chalked-up four or five convictions for driving while
    prohibited. That is not surprising, since he has accumulated multiple convictions
    for drunk driving. A person who repeatedly does what he is prohibited from
    doing shows a callous disregard for the rules. It is a form of dishonesty.

[82]

It
    was of course open to the trial judge to reject the testimony of the appellant
    that the conduct alleged by N.A. never occurred. But his reasons for doing so
    must be free of legal error.

[83]

In
    this case, the trial judges rejection of the appellants evidence because of
    his history of crimes of dishonesty is fatally flawed for several reasons.

[84]

As
    we have seen, s. 12(1) of the
CEA
permits a witness to be questioned
    about prior convictions of offences. This enactment reflects a legislative
    determination that prior convictions are relevant to the testimonial
    trustworthiness of a witness. And we have also seen that the proper manner in
    which the witness is to be questioned involves being asked about the offence,
    the place and date of the conviction and the punishment imposed. These details
    assist the trial judge in assigning the weight, if any, to the convictions when
    assessing the witness testimonial trustworthiness.

[85]

In
    this case, the manner in which counsel at trial adduced evidence about the
    appellants troubles deprived the trial judge of the information necessary to
    make an informed assessment of the impact, if any, of the prior convictions on
    the appellants credibility as a witness. No description of the offence. No
    dates of conviction. No punishment imposed. The descriptive drunk driving
    does not assist in the absence of a
Criminal Code
provision creating
    such an offence.

[86]

Further,
    the reference to the appellants history of dishonesty seems at once
    speculative and sits uncomfortably close to the use of propensity reasoning.
    Reasonable people may differ about whether the
Criminal Code
offence
    of driving while disqualified is an offence of dishonesty or more properly
    characterized as an offence against the administration of justice. However
    characterized, without any details about the number and proximity of the
    convictions, nothing informed could be said about their impact on testimonial
    trustworthiness.

[87]

In
    these circumstances, it becomes unnecessary to consider the impact, if any, of
Gladue
principles on the exercise of the
Corbett
discretion under s. 12(1) of
    the
CEA
, as well as the motion to introduce fresh evidence in support
    of that argument raised for the first time in this court.

Conclusion

[88]

For
    these reasons, I would allow the appeal, set aside the convictions and order a
    new trial on those counts of which the appellant was convicted.

Released: DW JUNE 18 2019

David Watt J.A.

I agree. M.L. Benotto J.A.

I agree. L.B. Roberts J.A.


