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EVIDENCE - Witnesses - Credibility - Previous record of witness

Monday, July 22, 2019 @ 9:19 AM  

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Appeal by the accused from convictions for sexual offences. AR and NA, brothers, alleged the appellant, a relative, sexually abused them when they were very young. The trial judge acquitted the appellant of the offences against AR and convicted him of the offences against NA. At trial, the appellant was questioned by his own counsel about drinking, driving and the lack of a driver’s licence. The appellant acknowledged a drinking problem when he was younger and admitted he went to jail because of drinking and driving charges. No description of the offence, no dates of conviction and no punishment imposed were given. In assessing the appellant’s credibility, the trial judge referred to the appellant’s history of crimes of dishonesty, relying on his driving offences. The appellant argued the trial judge erred in relying on the appellant’s criminal record in assessing his credibility.

HELD: Appeal allowed. New trial ordered. The trial judge’s rejection of the appellant’s evidence because of his history of crimes of dishonesty was fatally flawed. Given the way trial counsel adduced evidence of the appellant’s criminal antecedents, the trial judge could not make an informed assessment of its impact on the appellant’s credibility as a witness. He thus erred in relying on that evidence in rejecting the appellant’s testimony. The reference to the appellant’s history of dishonesty seemed speculative and close to the use of propensity reasoning. Without any details about the number and proximity of the convictions, nothing informed could be said about their impact on testimonial trustworthiness.

R. v. M.C., [2019] O.J. No. 3213, Ontario Court of Appeal, D. Watt, M.L. Benotto and L.B. Roberts JJ.A., June 18, 2019. Digest No. TLD-July222019002