Here’s what they can’t tell juries

The law quite properly insists that someone’s criminal record should not prejudice his right to a fair trial. But can’t juries be trusted to hear anything about an accused’s past?

By CHRISTIE BLATCHFORD
Saturday, June 12, 2004 – Page A21

I didn’t cover the trial of Tyson Talbot, a one-time child actor who last week was acquitted in the death of Christopher Shelton, and I wasn’t in court when the jurors returned with their verdict.

But reading about it, and later a furious cogent letter in Wednesday’s Globe and Mail from Mr. Shelton’s mother, Theresa, I might just as well have been: dj vu all over again, as Yogi Berra famously said.

Here I refer not to the verdict, but rather to some of what preceded it and, in particular, a ruling — common in Canadian trials — that saw the jurors left with an arguably misleading picture of the accused before the court.

Here then, a quick review of the facts of the case. Mr. Talbot, now 32, in his youth appeared as a regular in the popular TV show Kids of Degrassi Street and in four episodes of its successor, Degrassi Junior High. Mr. Shelton was, at the time of his death, a part-time, prelaw University of Toronto student and part-time bartender. He was 23.

The two crossed paths in the early hours of a November morning two years ago outside a 24-hour restaurant in Toronto’s east end. Mr. Shelton had been out clubbing with two friends, and, as one of them, Darryl Sharpe, testified at trial, he emerged after paying the bill to find Mr. Shelton and their other friend engaged in an argument with Mr. Talbot, who also had been at the restaurant with two women.

Mr. Sharpe’s version of what he saw next — Mr. Talbot sucker punch Mr. Shelton, knocking him down, his head whiplashing hard off the pavement as he fell, and then Mr. Talbot stomping on his face — was not so different in its essentials from Mr. Talbot’s own explanation.

Testifying in his own defence last month, Mr. Talbot broke down in the witness box, admitted he had kicked Mr. Shelton after punching him, and agreed in cross-examination by prosecutor John Scutt that none of the men had so much as laid a finger on him. Yet Mr. Talbot tearfully portrayed himself as partially a “victim” of an aggressive confrontation with the trio.

In what was described at the time as a blistering cross, prosecutor Scutt suggested Mr. Talbot had attacked Mr. Shelton over perceived slights to the women he was with at the restaurant. Mr. Talbot said he was frightened by the three men, and went on to deny that he had intentionally harmed Mr. Shelton.

At one point, Mr. Talbot grew upset with the prosecutor’s line of questioning. “I wasn’t doing anything wrong. I was by myself, confronted by guys yelling and screaming. I defend myself and now I find myself charged with murder. How fair is that?”

At the conclusion of the Crown’s case, Mr. Talbot’s lawyers brought what’s called a Corbett application. The name comes from a 1988 Supreme Court of Canada decision in the case of Lawrence Wilburn Corbett, a Vancouver man convicted of the first-degree murder of one of his drug-trade associates. He elected to testify, and his lawyers had tried to prevent the prosecutor from cross-examining him on his criminal record, which as it happened included a previous conviction for what was then called non-capital murder. The trial judge allowed the full record in, but warned the jurors they were to use the information only in assessing Mr. Corbett’s credibility, and not his character. Mr. Corbett appealed, the B.C. Court of Appeal upheld the conviction, and it went to the Supreme Court.

In a split decision, the high court also upheld the conviction, and dismissed the appeal. Then-Chief Justice Brian Dickson wrote that there is always a risk that jurors may improperly use such evidence — in this case, to decide this accused had a propensity for violence if not murder.

But the Chief Justice concluded, rather ringingly, that “. . . to conceal the prior criminal record of an accused who testifies would deprive the jury of information relevant to credibility and create a much more serious risk that the jury will be presented with a misleading picture.”

In the intervening years, however, as much if not more weight has come to be given to the Supreme Court’s caveat in the Corbett decision — the formal finding that judges do have the common-law discretion to exclude convictions if they are deemed more potentially prejudicial than probative — with the result that often, records are either disallowed in whole or part or otherwise sanitized.

That brings us back to Mr. Talbot, who by chance has a long record — 25 convictions, almost a third of them for such violent crimes as assault, assault causing bodily harm, and assault with a weapon. At the time of Mr. Shelton’s death, Mr. Talbot was also on bail on a charge of attempted murder (something that clearly was prejudicial and could never have gone before the jurors) — accused of stabbing a man who was coming out of a bar.

His lawyers succeeded with their Corbett application, with Ontario Superior Court Judge Gloria Epstein unsurprisingly banning any mention of Mr. Talbot’s current attempt-murder charge, but also editing his record to expunge the convictions involving violence and even arbitrarily reducing two robbery convictions to the lesser offence of theft.

As a result, when Mr. Talbot took the stand, he presented as a tremulous fellow with a long record (theft, possession of stolen property and the like) but who, nonetheless, over those 15 years of being almost continually in trouble, apparently had never once resorted to violence.

This wasn’t accurate. It wasn’t true. Chief Justice Dickson warned of the dangers of leaving jurors in the dark, even as he recognized they sometimes make egregious mistakes. But so long as there is trial by jury, he said, “until the paradigm is altered by Parliament, the court should not be heard to call into question the capacity of juries to do the job assigned to them.”

Back then, the fundamental right to a jury trial recently had been underscored by the Canadian Charter of Rights and Freedoms. “If that right is so important,” Chief Justice Dickson wrote, “it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge” on how to use such information as criminal records.

Poor, poor Christopher Shelton, who wanted to study the law, but was instead, in death, arguably done in by it. To borrow from Mr. Talbot, how fair is that?