Success at the Supreme Court: Anti-Black racism must be considered on Corbett applications

In January 2025, Rudnicki & Company intervened at the Supreme Court of Canada on behalf of the Canadian Association of Black Lawyers in R v Hussein, a case about the admissibility of a testifying defendant’s criminal record (often called “Corbett applications”). Senior Associate Theresa Donkor led our submissions, urging the Supreme Court to recognize that systemic anti-Black racism is a highly relevant factor in such applications.

Today, the Supreme Court released its decision in R v Hussein, fully adopting Theresa’s submissions. It is now beyond dispute that social context evidence must be considered on Corbett applications. Trial judges must (a) take judicial notice of systemic disadvantage and (b) consider whether there is some link between that disadvantage and the offences sought to be excluded. A causal connection is not required. Trial judges must further consider systemic racism in assessing the prejudicial effect of the evidence. "The prejudicial effect of admitting prior convictions into evidence can also be elevated when the accused is a member of a disadvantaged group that is subject to discriminatory biases and stereotyping": see para 100.

The Court made two significant additional refinements to the Corbett test.

First, the Court recognized that criminal record evidence is highly prejudicial in jury trials. Citing jury research, the Court noted that "the amelioration of moral prejudice is best achieved through evidentiary exclusions rather than limiting instructions": see para 72. Trial judges "should not hesitate to exercise their common law discretion to exclude convictions that do not have sufficient probative value on the issue of credibility to overcome the prejudice associated with admitting them": para 76.

Second, the Court held that the nature of the offence is the "most important factor" on a Corbett application. Trial judges must examine whether the offence raises a specific inference of dishonesty. This means that "[f]or the most part, crimes of violence have limited probative value because they do not support this specific credibility inference": para 79.

This is a very important development and a victory for the defence. Prior case law held that violent offences are per se probative of dishonesty because they show general "contempt for the law". Hussein definitively explodes that myth. Expect to see most violent offences excluded in future Corbett applications.