Cowie v. Cowell

Cowie v. Cowell (1995), O.J. No. 4720 (S.C.J.) Aff’d on appeal [Cowie]

 Cowie outlines the manner in which a cross-examination on the subject of prior convictions may be conducted.  The cross-examiner has to address each prior conviction individually.  It follows that the court will evaluate the admissibility of individual convictions before even considering the criminal record as a whole.

In Cowie, at the conclusion of the cross-examination, the plaintiff was asked if she had ever been convicted of a criminal offence.   The plaintiff replied in the affirmative.  There were no follow-up questions.  The counsel for the defence explained to the court that the question was in regards to a 1983 conviction for credit card fraud

The plaintiffs took the position that the question put her in an unduly prejudicial light and that no instruction by the trial judge could reasonably be expected to blunt or deflect the prejudice which would result to the plaintiff.  As it was no longer possible for the jury to judge the plaintiffs’ claim fairly, the plaintiffs moved to strike the jury notice on the ground of prejudice.

In reviewing the application to strike the jury, Horkin J. considered his right as a trial judge to exclude evidence obtained in accordance with S.22(1) of the Ontario Evidence Act (OEA).  At paragraph 5 he stated that:

Section 22 is permissive. It is important to bear in mind that the trial judge always has the discretion to exclude from the trial, evidence where the prejudice it creates outweighs its probative value. The trial judge as well always has the discretion to exclude evidence of previous convictions or criminal record in those cases where a mechanical application of the Evidence Act would undermine the litigant’s right to a fair trial by an impartial jury, and that language is paraphrased somewhat from Corbett, which is a case, of course, in the criminal context.

Horkin J. agreed that asking whether the plaintiff “was ever convicted of a criminal offense” can be unduly prejudicial.  Furthermore, it leaves the court in a vacuum. The court has no way of knowing which offense the plaintiff referred to.  Without the nature and the date of the offense, the court cannot instruct the jury why the plaintiff’s criminal record is or is not a matter of importance.

Horkin J. proceeded to explain the appropriate manner in which to raise the prior criminal record of a witness.  At paragraphs 6, he noted that the question should have been worded as follows:

 “Where you convicted of the offence of criminal fraud in 1983?”

Horkin J. concluded that no instructions could undo the prejudice created in the minds of the jury.  He struck the jury in accordance with the plaintiffs’ motion.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.