Facts: Corbett charged with murder in respect of one of his associates in the drug trade. The deceased owed Corbett lots of money. He was in the cocaine trade with him. He was on parole for a life sentence imposed in 1971. He and Allen (girlfriend) argued in hotel room then he went to the deceased’s house and shot him.
The accused attack the credibility of the Crown witnesses who identified him. He elected to testify and the defense sought to prevent the Crown cross-examination of him on past offences. They argued that if the jury found that he had already been convicted of murder it would be so prejudicial as to infringe on his Charter right to a free trial. The evidence came out in evidence in chief to limit the damage and the judge told the jury not to use it for anything other than credibility.
The Court of Appeal found that the trial judge erred in admitting the evidence.
Issues: Was the accused deprived of a right to a fair trial?
Holding: Appeal dismissed (LaForest dissenting).
Ratio: Per Dickson and Lamer: Legislature has decided that prior convictions do bear on the credibility of the witness. There is a worry that the trier of fact will not be able to use this information for the purpose of assessing credibility only. Juries have to make these distinctions all the time. The problem in this case is that the Crown witnesses all had criminal records if Corbett’s past convictions had not gone in the jury would not have had a balanced picture. Best way to go is to give the jury all the information with a good directions and trust them. There may be very unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trail. There should be an inclusionary principle and one should err on the side of inclusion. There is a discretion to exclude but it should not have been used in this case. There is a rule but there is a narrow place for exceptions.
Beetz agreed but added that it there was no discretion then it would not conform with the Charter.
McIntyre and Le Dain: The trial judge has no discretion to exclude evidence under s.12. There is a clear law in the Evidence Act. The doctrine of parliamentary supremacy leaves no room for such a discretion. Otherwise parliament cannot alter the common law.
LaForest (dissenting): Independent of a Charter breach the trial judge has the discretion to exclude evidence. Should not divorce legal reasoning and common sense. You must interpret statutory principles in the light of guiding principles. It should have been exercised in this case. There is always a discretion to omit evidence.
Smith v. Jones SCC 1999
Facts: Aggravated sexual assault on a prostitute. He was referred to a psychiatrist to help with his defense. During the interview he told the psychiatrist in detail his plan to kidnap, rape and kill prostitutes. The psychiatrist formed the opinion that the accused was dangerous and would more than likely re-offend. He was concerned that his views would not surface at sentencing in the trial. He wanted to let the police and the Crown know in the interests of public safety. The trial judge allowed this. The Court of Appeal allowed the appeal but only to a certain extent??
Issues: Should the information be in?
Holding: Appeal dismissed. (Lamer, Major and Binnie dissenting).The file will be unsealied and the ban on publication of its contents removed except for those parts which do not fall within the public safety exception.
Ratio: L'Heuruex-Dubé, Gonthier. Cory. McLachlin, Iacobucci, Basterache.The client- solicitor privilege is not absolute. In setting it aside you must look at
Is there a clear risk to an identifiable person or group of persons?
Is there a risk of serious bodily harm of death?
Is the danger imminent?
There is a case here of public safety.
Dissent say that the breach should be as narrow as possible so as not to discourage dangerous people from seeking help.
Woolmington v. D.P.P. 1935 Facts: A man 21 1/2 was charged with the murder of his 17 1/2 year old wife. They had been separated for a while and she was living with her aunt. Woolmington went around to the house where she was staying to convince her to come back to him. The aunt heard talking and a gun shot then saw Woolmington leaving. Woolmington contends that it was an accident. He had wanted to scare his wife into returning to him by threatening to commit suicide and had shot her by accident.
Issues: The judge in his instructions to the jury tells them that if the Crown prove that someone killed a person it will be presumed that it was murder unless that person can prove otherwise; " for the law presumeth the fact to have been founded in malice, until the contrary appeareth" Sir Michael Foster. This seems to suggest that the burden is on the defendant to prove his innocence. Is this a correct statement of the law?
Holding: Held. The conviction should be quashed.
Ratio: There are very few authorities that would support such a position. M'Naghten and Rex v. Oliver Smith are rare exceptions dealing with the defense of insanity which the defendant must prove. We must bare several factors in mind when considering very old cases as many things have since changed. In fact the statements of Foster and others means that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which a jury may, not must, convict a man. If at any point the judge could say to the jury that the defendant had not proved his innocence and therefore they must find him guilty the judge and not the jury would have decided the case.
"…he is entitled to the benefit of doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence". The case must be proved beyond a reasonable doubt.
This presumption violates the presumption of innocence in two ways:
If the act causing the death of the victim is proved then this gives rise to the presumption of intent. This releaves the Crown of the burden of proving that the accused had the required mens rea for the crime. Thus the jury could convict a man while they still had a reasonable doubt as to an essential element in the crime (mens rea).
There is also the problem that this creates a revers onus. The accused then assumes the burden, if he wants to offer a defense, of proving that he did not have the intent to kill.