Forgetting youth: the use of prior youth records to impugn credibility.

• Author: Langille, Nicola J.
• Position: Canada

INTRODUCTION I USING PRIOR CONVICTIONS TO IMPUGN CREDIBILITY Justification for the Use of Prior Convictions R v Corbett: Limiting the Use of Prior Convictions Challenges to this Law II PARALLEL TREATMENT OF YOUTH OFFENDERS Legal Scenarios Permitting Access To and Use of Youth Records Legal Challenges to the Status Quo have Failed III JUSTIFYING DIFFERENTIAL TREATMENT Aims of the Youth Criminal Justice System Judicial Reticence to Treat Youth and Adult Records Analogously Jurisprudential Support: R v DB and the Creation of a Principle of Fundamental Justice Applying R v DB to Youth Records Social Science Evidence on Motivators of Youth Offending IV IMPLEMENTING SPECIAL PROTECTIONS FOR YOUTH RE-OFFENDERS Option 1: Adding a Corbett Factor Option 2: R v DB and Reversing the Onus Inappropriateness of an Outright Ban CONCLUSION INTRODUCTION

It is trite law that an accused who chooses to testify can be cross-examined on prior convictions in order to impugn his or her credibility. And as the law stands, provided that a youth record is accessible, it makes little difference whether those convictions stem from the accused's youth or adulthood. Yet there is good reason to question the parallel treatment of youth and adult conviction records. Significant legal shifts have occurred since the Supreme Court of Canada examined and upheld this parallel treatment in the 1979 Morris decision. (1) First, the Court held in the 1988 Corbett decision that trial judges can restrict the Crown's use of past records to impugn credibility where their use would be unduly prejudicial to an accused. (2) Second, and more importantly, in the 2008 R v DB (3) decision the Court held that there exists a "presumption of diminished moral blameworthiness for young persons" that is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). (4) In this essay, I argue that these developments, coupled with continuing academic and judicial consternation concerning the use of prior youth records, should call the practice of using youth records to impugn an accused's credibility into question.

This essay proceeds in four Parts. In Part I, I examine the rationale for and rules governing the use of prior adult convictions to impugn credibility. In Part II, I demonstrate that, in many circumstances, youth records are accessible and can be used to impugn an accused's credibility. In Part III, I argue that this parallel treatment should be re-examined for three reasons. First, it undermines the important goals of the Youth Criminal Justice Act ("YCJA"). (5) Second, judges are evidently concerned about treating prior youth records and prior adult records alike, but are constrained by the tools offered to them by Corbett. Third, and most importantly, the presumption of diminished moral blameworthiness of youth from R v DB should require different treatment of prior youth records. If we take R v DB and its underlying lessons on youth moral and psychological development seriously, then something must be done to recognize the diminished probative value of youth records. Finally, in Part IV, I offer two suggestions for how youth records could be more appropriately dealt with if they are to be used to impugn an accused's credibility, while stopping short of advocating a complete ban on the practice.

I USING PRIOR CONVICTIONS TO IMPUGN CREDIBILITY

1. JUSTIFICATION FOR THE USE OF PRIOR CONVICTIONS

   It has long been permissible to cross-examine an accused on his or her prior convictions. (6) Indeed, "[c]ross-examination of an accused with respect to prior convictions has been permitted in Canada since an accused first became competent to testify on his own behalf in 1893." (7) Today, section 12 of the Canada Evidence Act (8) ("CEA") states that "[a] witness", including the accused, "may be questioned as to whether the witness has been convicted of any offence." (9)

   The value of prior convictions supposedly lies in their relevance to the credibility of the witness being cross-examined. In Corbett, Dickson CJ held that "[w]hat lies behind s. 12 [of the CEA] is a legislative judgment that prior convictions do bear upon the credibility of a witness." (10) While "the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed ... it is a fact which a jury might take into account in assessing credibility," (11) along with other relevant factors (for example, the witness's demeanour) thought to be somewhat indicative (or probative) of credibility.

   The use to which the prior convictions can be put is restricted. Prior convictions cannot be used as evidence that the accused is likely the person who committed the offence. (12) The "danger that the jury may find it difficult to confine evidence of previous convictions to the issue of credibility and use it for the forbidden purpose of determining that the accused is a person likely from his criminal conduct to have committed the offence" is a real one to which the trial judge must be attuned. (13)

   Furthermore, not all crimes are seen as equally valuable in assessing credibility. So-called "offences of dishonesty" are "especially relevant to the issue of a defendant's creditworthiness," (14) and thus have "greater probative value." (15) Examples of this type of crime include "convictions for break and enter and theft and possession of stolen property," (16) or more broadly "[o]ffences that involve acts of deceit, fraud, cheating or stealing." (17) Nonetheless, the commission of any crime is thought to be at least somewhat relevant to credibility. As stated by Thorburn J, "[e]ven crimes involving no dishonesty are relevant to credibility, since they evince contempt for the law." (18) In other oft-repeated terms, such convictions "have probative value that is greater than trifling because a jury could reasonably conclude that the convictions reflect a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie." (19)

   In short, while certain crimes are more probative than others, the law generally permits the inference that, because the witness offended in the past, they may be lying in the witness box at present. However, as we will see now, the use of prior convictions to undermine credibility is not without limits.

2. R V CORBETT: LIMITING THE USE OF PRIOR CONVICTIONS

   Under section 12 of the CEA, prior convictions are presumptively admissible as probative of a witness's credibility. In other words, "the criminal record is accepted as being relevant to credibility and in the usual case cross-examination should be allowed." (20) However, in R v Corbett, La Forest J (21) held that the Charter requires this general rule to be subject to a residual discretion held by trial judges to exclude evidence of prior convictions where admission would undermine the accused's right to a fair trial; that is, where admission would cause excessive prejudice relative to the evidence's probative value. (22) Importantly, the accused bears the onus of establishing that admission of the records would undermine his or her right to a fair trial. (23) La Forest J highlighted four factors that trial judges should consider in determining whether to exclude such evidence:

   1) The nature of the previous conviction: a conviction for perjury or fraud is far more telling about a person's honesty and integrity than a conviction for assault.

   2) How similar the previous conviction is to the offence now charged: the concern here is of prejudice. Justice La Forest was of the view that 'a court should be very chary of admitting evidence of a previous conviction for a similar crime.'

   3) The remoteness or nearness of the previous conviction: convictions occurring long before and followed by a blameless life should generally be excluded.

   4) Fairness: where the accused attacks the credibility of the Crown witnesses and credibility is at issue, it would be unfair to insulate the accused from his own criminal past. To allow this would present a distorted view to the jury. (24)

   These factors are not intended to be exhaustive; they merely guide trial judges' exercise of their discretion.

3. CHALLENGES TO THIS LAW

   Despite the advancements made in Corbett, many believe that the law still does not go far enough in protecting an accused from the potential dangers of adducing evidence of prior convictions. First, some people doubt whether, empirically, evidence of prior convictions is probative of whether an accused will lie on the stand. John H. Blume, for instance, wonders why an accused with prior convictions should be thought any more likely to lie than a rational self-interested accused without a criminal record. On his view, whether or not an individual will lie on the stand is contingent upon two variables: "(1) the importance of having the untruthful testimony believed; and (2) their level of confidence that the false testimony will achieve that end without undue risk." 25 While the current rules assume "that a defendant without a prior record is more likely to tell the truth," this assumption is faulty. Both recidivists and first-time offenders "have similar incentives to lie if they are facing similar punishment." (26)

   Others contest the use of prior records because of the high potential for creating jury prejudice toward the accused. As H. Uviller writes,

   If any juror paused to consider [the] standard instruction [that they are not to take the fact that the defendant has been previously convicted as evidence that he committed the crime with which he is now charged] (and there is no report that any juror has), he or she would find it odd indeed: the jurors are told that they may not judge the defendant guilty of arson because he committed that robbery and those other larcenies, but they may consider those convictions in deciding whether the defendant lied when he denied committing...