If you have a past criminal record and decide to testify at your own trial, a Corbett Application allows your defence lawyer to ask the judge to hide your past convictions from the jury. This prevents the jury from unfairly assuming you are guilty simply because you have made mistakes in the past.
Deciding whether to take the witness stand in your own defence is one of the most critical decisions in any criminal trial. In Canada, the accused has an absolute right to remain silent. However, if you choose to testify, you open yourself up to cross-examination by the Crown prosecutor. Under Section 12 of the Canada Evidence Act, the Crown is generally allowed to ask you about your previous criminal convictions to test your credibility.
This creates a terrifying dilemma. ⚠ If the jury hears that you have prior convictions for assault or theft, they might convict you based on your past character rather than the actual evidence of the current case. To prevent this severe prejudice, a criminal defence lawyer can bring a Corbett Application, named after a famous Supreme Court case. Whether you are facing a judge and jury in Montreal, St. John’s, or Moncton, this application ensures you get a fair trial.
Step-by-Step Process for a Corbett Application in Canada
A Corbett Application is handled out of the earshot of the jury. If your trial is in the Cour supérieure or the Supreme Court of your province, here is how the procedure unfolds.
Step 1: The Decision to Testify
Your lawyer will review your historical criminal record with you. Together, you will decide if your testimony is absolutely necessary to win the case. If you have a lengthy record and must testify, your lawyer will prepare the Corbett Application to neutralize the Crown’s ability to use your past against you.
Step 2: Filing the Corbett Application (Voir Dire)
Before you take the stand, the jury is asked to leave the courtroom. 📝 Your lawyer will run a “voir dire” (a hearing without the jury present) to ask the trial judge to exclude some or all of your past convictions from being mentioned during the Crown’s cross-examination.
Step 3: The Balancing Act
The judge must weigh the probative value of your record (how much it genuinely helps determine if you are telling the truth on the stand) against its prejudicial effect (how likely it is to unfairly turn the jury against you). For example, a 15-year-old conviction for simple drug possession has very little to do with your honesty today, but could severely prejudice a jury in a modern drug trial.
Step 4: The Judge’s Corbett Ruling
The judge has the power to “edit” your criminal record. ✂️ They might forbid the Crown from mentioning certain old convictions entirely. Alternatively, they might allow the Crown to mention that you have “a prior conviction” but forbid them from telling the jury exactly what the specific offence was (this is called “sanitizing” the record).
Factors the Judge Considers in a Corbett Application
| Nature of Previous Convictions | Crimes of dishonesty (like fraud or perjury) are highly relevant to credibility and are usually allowed. Crimes of violence (like assault) are less about honesty and are often excluded. |
| Similarity to the Current Charge | If you are on trial for theft, a prior theft conviction is highly prejudicial (the jury might think “once a thief, always a thief”) and is a strong candidate for exclusion. |
| Age of the Convictions | Historical convictions from 10 or 20 years ago, especially if you have been well-behaved since, are very likely to be excluded by the judge. |
How Much Does a Defence Lawyer Cost?
Taking a case to a jury trial is the most expensive type of criminal defence. 💵 Running pre-trial motions, charter applications, and Corbett applications requires extensive preparation. In Canada, a standard jury trial for a serious indictable offence can easily result in legal fees ranging from $20,000 to $50,000 CAD or more, depending on the number of days spent in court.
How Long Does the Process Take?
A Corbett Application itself does not add months to your timeline; it is usually handled within the existing schedule of the trial. The voir dire hearing typically takes a few hours to half a day of court time before you take the witness stand.
Frequently Asked Questions (FAQ)
Does a Corbett Application apply to trials without a jury?
While theoretically possible, they are incredibly rare in judge-alone trials. Judges are legally trained to separate a person’s past record from the current evidence, so the risk of prejudice is considered much lower than with an untrained jury.
Can the Crown mention my youth record?
Generally, no. Under the Youth Criminal Justice Act (YCJA), youth records are heavily protected and sealed once you become an adult, meaning the Crown cannot typically use them to cross-examine you on your credibility.
What happens if I lie about my record on the stand?
If the judge grants a Corbett Application to hide an old conviction, and you subsequently testify and falsely claim “I have never been in trouble with the law in my life,” the judge will likely revoke the Corbett ruling and allow the Crown to expose your lie to the jury.
Will the jury know I am hiding something?
No. The jury is outside the room when the Corbett Application is argued. If the judge excludes a conviction, the Crown acts as if that specific conviction simply never happened during their questioning.
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