5. Prior Convictions

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 143-146

Page 143

A party to a civil proceeding may prove that the other party or a third party has been convicted of a criminal offence for the purpose of establishing prima facie that such person committed the offence charged.

As we have seen, prior testimony may be admitted. It would seem that the logical next step would be to admit prior convictions as evidence of the material facts underlying the charges. Return to the example given in the previous section:

D is charged and convicted of criminal negligence causing death. His de-fence was that it was not he who was driving the car at the time of the accident, but the deceased. A civil case is now brought by the parents of the deceased against D for wrongful death. D, once again, claims that he was not the driver. Can the parents introduce into evidence D’s conviction?

In order to support the conviction the criminal court must have found as a fact that D was the driver; he was driving with wanton or reckless disregard for the lives and safety of other persons; and as a result he caused the death. Essentially these same issues are before the court in the civil action.¹¹⁵Moreover, the evidence has high assurances of reliability. There are the usual criminal trial safeguards, including the fact

Page 144

that the Crown must prove its case beyond a reasonable doubt. Notwithstanding the logic in admitting such evidence, the English Court of Appeal in Hollington v. Hewthorne ruled to the contrary.¹¹⁶Hollington v. Hewthorne is not followed in Canada. Moreover, a number of provinces now in their Evidence Acts expressly provide for the admissibility of prior convictions.¹¹⁷Evidence of a prior conviction may be used "offensively" by a plaintiff to prove the basis of a claim. For example, in Simpson v. Geswein the plaintiff brought an action in assault and battery against the defendant.¹¹⁸In the criminal court the defendant was convicted of assault with a weapon concerning the same incident. The plaintiff filed the certificate of conviction as prima facie proof of the assault, subject to rebuttal.

Evidence of a prior conviction may be used "defensively" by a defendant to resist a claim. Demeter v. British Pacific Life Insurance Co. is the classic example.¹¹⁹Demeter was convicted of the murder of his wife. He then brought an action to recover as beneficiary under various insurance policies taken out on her life. The insurers defended on the basis that Demeter could not now benefit from his own criminal act, and they...