Does a jury get to hear about an accused’s criminal record?

PUBLISHED ON July 19, 2024

An issue in many trials at the Superior Court of Justice is what, if anything, a jury gets to know about an accused’s criminal record. Is the criminal record relevant? Would it be too prejudicial to an accused for a jury to hear about the criminal record because the jury might conclude “once a criminal, always a criminal”?

The following information is not legal advice and should not be relied upon as such. For legal advice, contact a criminal defence lawyer in Toronto like Brian Ross today. 

The basis upon which a jury can hear about a criminal record

Section 12 of the Canada Evidence Act holds as follows:

12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act but including such an offence where the conviction was entered after a trial on an indictment.

So, if a person charged with an offence is having a trial and chooses to testify, the jury may be able to hear of their criminal record. Should the accused person testify, the default position is that they can be cross-examined on their criminal record in a very limited way. They can be asked about (a) the conviction itself, (b) the date of the conviction, and (c) the sentence that they received. Except in specific circumstances, the jury does not get to hear about the underlying facts behind the conviction, and the accused cannot be cross-examined about them.  

Excluding a criminal record from the jury’s consideration

There are times, though, when an accused’s criminal record can be excluded from the jury’s consideration. Sometimes, the criminal record has such limited probative value that the risk of prejudice to the accused outweighs the limited probative value.  For example, a dated conviction for possession of marijuana would be of little assistance to a jury in considering whether an accused is guilty of fraud or aggravated assault.  When an accused wishes to have evidence of a criminal record excluded from a jury’s consideration, the defence will need to bring an application to the trial judge, a Corbett Application.

A trial judge considering a Corbett application to prevent their client from being cross-examined on their criminal will consider several factors. These factors include the nature of the conviction, how long ago the conviction was, whether the case boils down to a credibility contest and whether the accused person’s record demonstrates a disrespect for society’s rules and laws that suggests a person with such attitudes would not hesitate to lie under oath.

When an accused person brings a Corbett application, the Court must balance the risk that the jury might use a past criminal record for an improper purpose – like suggesting that because someone committed a similar crime in the past, they may have been more likely to commit the crime they are currently charged –  with proper purposes, including whether the accused has a history of committing crimes of dishonesty.  Ultimately, it is up to the trial judge, and sometimes, the trial judge will allow the jury to hear only parts of an accused’s criminal record. To be clear, the trial judge can allow all, some, or none of an accused’s prior convictions to be entered as evidence at the accused’s trial.

For more information about Corbett applications and how a previous criminal record might impact your trial, please feel free to contact Brian Ross at (416)-685-5855 today.