




CITATION:
R. v. Farrell, 2011
          ONCA 572



DATE: 20110902



DOCKET: C52073



COURT OF APPEAL FOR ONTARIO



Rosenberg, Gillese and
LaForme
JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Cory Farrell



Appellant



Cory Farrell, in person



Emily Morton,
amicus
          curiae

Deborah
Krick
, for the respondent



Heard: August 15, 2011



On appeal from conviction entered by Justice Joseph
Fragomeni
of the Superior Court of Justice, sitting with
          a jury, dated January 26, 2010.



E
    N D O R S E M E N T

[1]

The appellant, with the assistance of duty counsel,
    appeals from his conviction for aggravated assault by a court composed of
Fragomeni
J. and a jury.  For the following reasons, the appeal is allowed and a new trial
    ordered.

[2]

The appellants defence at trial was self-defence and
    defence of others.  Prior to testifying
    he brought a
Corbett
application (
R. v. Corbett,
[1988] 1 S.C.R. 670) to
    have some of the convictions on his criminal record excised.  The particular convictions were a 1993
    conviction for assault and a 1996 conviction of assault with a weapon.  The defence conceded that a conviction in
    1999 for assault should be before the jury.  There was also no dispute that the appellant could be cross-examined on
    other parts of his criminal record, which included crimes of dishonesty such as
    theft and possession of stolen goods.

[3]

One of the pivotal issues in the case was whether the
    victim, Mr. Philips, was the aggressor as claimed by the appellant.  The trial judge concluded that the entire
    record should be before the jury and, in addition, he allowed Crown counsel to
    cross-examine the appellant on the facts underlying the three assault
    convictions.  He did so on the basis that
    otherwise there was a risk that the jury will be presented with a misleading
    picture and a skewed view of the facts.  Consistent with this ruling, the trial judge then instructed the jury
    that they could use the assault convictions to determine who, as between the
    appellant and the victim, was the aggressor:

It is very important that you understand that you
    must not use the fact, number or nature of the prior convictions to decide or
    help you decide that Cory Farrell is the sort of person who would commit the
    offences charged. The evidence relating to Cory Farrells criminal record is relevant
    to your assessment of the credibility of Cory Farrell.
It is also relevant in your assessment of who was the aggressor in this
    matter and how that determination relates to the defence being put forward in
    this matter, namely self defence
. [Emphasis added.]

[4]

In our view, the trial judge erred with respect to his
    ruling on the
Corbett
application and
    in his charge to the jury.  As to the
Corbett
application, while there was
    some attack on Mr. Philips credibility, because of his bad character, that aspect
    of the cross-examination was relatively insignificant.  The overwhelming amount of cross-examination
    was directed to the particular incident and the victims relationship with the
    women involved in the incident.  There
    was no cross-examination of the victim on any criminal record.  This case falls within this courts decision
    in
R. v. B. (W.),
145 C.C.C. (3d) 498
    at
paras
. 45  49.  The attack on the victims evidence may incidentally have impacted on
    his character but the cross-examination was primarily directed to the
    truthfulness of his account of the incident.

[5]

The error in allowing cross-examination on the entire
    criminal record was compounded by the trial judge leaving it to the jury to use
    the appellants criminal record not only for credibility but to decide whether
    it was the appellant or the victim who was the aggressor.  Where the Crown is permitted to cross-examine
    an accused under s. 12 of the
Canada
    Evidence Act
, the record goes only to the
accuseds
credibility.  The jury is to be cautioned
    as to the limited use of the evidence.  As Dickson C.J. said in
Corbett
at
    p. 691.

In my view, the best way to balance and
    alleviate these risks is to give the jury all the information, but at the same
    time give a clear direction as to the limited use they are to make of such
    information. Rules which put blinders over the eyes of the
trier
of fact should be avoided except as a last resort. It is preferable to trust
    the good sense of the jury and to give the jury all relevant information,
so long as it is accompanied by a clear
    instruction in law from the trial judge regarding the extent of its probative
    value
.  [Emphasis added.]

[6]

The appellants prior convictions and the facts
    underlying those convictions could only be admitted for a purpose other than to
    test his credibility if the trial judge found that the evidence met the test
    for similar fact evidence as enunciated by the Supreme Court of Canada in
R. v. Handy
, [2002] 2 S.C.R. 908.  Before the evidence could be admitted the
    trial judge would have had to determine whether the probative value of the
    evidence outweighed the serious prejudicial effect and in particular would have
    to consider the factors summarized at
para
. 82 of
Handy.
That was not done in this case, and given the remoteness of the convictions
    and the different context in which they arose we have grave doubts that the
    evidence could have been admitted as similar fact evidence.

[7]

As we have said, whether the appellant or the victim
    was the aggressor was an important issue in the case.  The evidence of the prior convictions and the
    facts underlying those convictions was highly prejudicial.  We cannot be satisfied that if the evidence
    had been excluded and the jury properly directed as to the limited use of the
    appellants record that the verdict would necessarily have been the same.

[8]

Accordingly, the appeal is allowed, the conviction
    quashed and a new trial ordered.  We wish
    to thank both counsel for their submissions in this case and especially Ms.
    Morton who acted as duty counsel and made submissions on the appellants
    behalf.

Signed:           M.  Rosenberg J.A.


E.E. Gillese J.A.

 H. S.
LaForme
J.A. 


