Forgetting Youth: The Use of Prior Youth Records to Impugn Credibility
Langille, Nicola J., University of Toronto Faculty of Law Review
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
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
I. 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. …