Truth, Credibility, And Criminal Records

A courtroom isn’t a referendum on character, and we dig into why that principle matters. We break down the Supreme Court of Canada’s updated guidance on Corbett applications—the rules that govern when an accused’s criminal record can be used to challenge credibility. We talk plainly about the balancing test judges apply: weigh probative value against unfair prejudice. Dishonesty offences like fraud and perjury can be highly relevant to truthfulness; dated youth convictions for non‑deceitful violence usually are not. In the case we cover, the trial judge erred by admitting the latter, but the conviction still stood because the evidence was overwhelming. It’s a sharp lesson in tailoring cross‑examination to credibility, not propensity.

Then we pivot to travel law with a surprising twist: a passenger burns his hand serving oatmeal in an airline lounge and sues. We map the Montreal Convention’s strict liability regime and why “embarking” is the line that matters. Being in a branded lounge past security isn’t enough; you need to be within the airline’s boarding control, like lined up at the gate. With the Convention off the table, the claim turns on occupiers’ liability. Reasonable safety does not mean perfect safety, and common sense counts. Hot food is hot, a clear flame symbol was present, and there was no proof of excessive temperature or unsafe setup—so no negligence.

We close with a procedural reality check: reopening a case after you lose is rare. Courts will only allow it to prevent a miscarriage of justice, not to offer a second chance to fix gaps in evidence. Across these stories, a consistent theme emerges: Canadian law protects fairness through careful boundaries—on what juries hear, when airlines are strictly liable, how far safety duties go, and when a judgment is truly final. Enjoy the tour through credibility, common carriers, and courtroom finality—and if this resonates, follow, share, and leave a review to help others find the show.

Follow this link for a transcript of the show and links to the cases discussed.

Chapters

• 0:00 Trials Judge Acts, Not Character
• 4:12 Criminal Records And Credibility
• 8:20 Corbett Framework Clarified
• 11:55 Error Found, Conviction Stands
• 13:50 Oatmeal Burn In Airport Lounge
• 16:40 Montreal Convention Limits

Transcript

Michael Mulligan: 0:28

Well, this is a important principle. And I should say the way the uh Chief Justice started his uh reasons for judgment in this case, um, he started this way. He said the common law has long long recognized that a criminal trial is not a forum to pass judgment on the general character of the accused. And the point there is that a criminal trial is about, you know, has the crown proven beyond a reasonable doubt that the person committed a particular offense, not are you generally a bad guy, right? We don't want to have a we don't want to live in a place where you kind of round up the usual suspects and convict people on the basis that they're just generally a bad guy, you know, the kind of guy that might have done this, that sort of thing. Um and some judicial care is required, particularly in jury cases, because all of us, of course, have emotional reactions to things. Um and without a little bit of uh effort by the judiciary, you could easily imagine how uh you could have decisions made on things other than the evidence about whether the person committed the specific offense. And so the the way that works in the context of criminal records, like if an accused person has a previous criminal record, uh uh barring some narrow circumstances where there's like a uh very similar fact pattern, like if you had somebody who five times previously dressed up as a clown and went into a bank with a you know bunch of balloons to distract the teller and rob the bank in some really oddball way, right? Where you might say, well, this crime is so similar to the other ones we know this person did, seems, you know, that's relevant to whether the person was the bank robber on a specific occasion. But barring that, the starting point in a criminal case would be the crown can't just stand up and say, look, this person was convicted of uh three bank robberies before, and so much more likely this guy did it this time. That's just not allowed. And so the circumstances where a criminal record can become you know rationally, logically relevant in a criminal case, include where an accused person chooses to testify, um, and there has to be an assessment made by the judge or jury about whether the person is credible. Uh that is then potentially relevant, the fact you have a previous criminal record. But there is a a weighing that has to go on uh about uh whether allowing the accused to be cross-examined about uh uh a criminal record would pass a general test of whether its uh prejudicial effect outweighs its probative value. And and that principle is a principle that judges are required to apply to all evidence, right, in a in a criminal case. If you have some evidence that has some really, really marginal probative value, but can be very prejudicial, a judge would be expected to say, no, we're not putting that in. Like, for example, if you had a uh uh a murder case where the only issue was the uh you know identity of who committed the murder, uh you would not expect uh, for example, a bunch of gruesome pictures from the autopsy to be uh presented to the jury, which would cause everyone to be completely revolted and you know, emotional reaction to seeing terrible things that doesn't tell us anything about who committed the crime, right? And so that would be an example of something that might well not be permitted. But the point the Supreme Court of Canada made here in trying to provide some further instructions about what the a Corbett application should involve, and Corbett is the name of a uh Supreme Court of Canada case from back in 1988, where the Supreme Court of Canada wrestled with this issue about sort of, well, how should a criminal record be used and should there be any vetting? You know, how should a judge um uh assess that? This case was a murder case where the accused did testify, and where the judge allowed the crown to cross-examine this fellow, uh the accused, on his entire criminal record, including things like youth convictions for uh dated youth convictions for offenses that did not involve any element of dishonesty, but instead had some elements of violence to them, like possessing a weapon and assault, for example, when he was a youth. Um and what the Supreme Court of Canada said here is that that should not have been allowed, uh, and sort of set out a framework that judges should be looking at when deciding what should and shouldn't be allowed on that test of probative value versus prejudicial effect. Uh and the Supreme Court of Canada here pointed out what might be obvious to people when you think about it, but there are some kinds of convictions which are highly relevant to whether a person is l is credible. For example, offenses involving dishonesty. Like let's say you had a person who had a previous conviction for theft or fraud, right? Or perjury, for example, right? That would those convictions would be highly probative of whether you should believe what the person has to say when they're saying I didn't commit the murder or I didn't rob the bank, whatever it is, right? It's well, hold on a moment here, sir. You you know seem to have been convicted of perjury twice, fraud five times, and three convictions for theft. That would be highly relevant to whether that person is believable. But on the other hand, if you have, for example, a dated conviction as a youth for an offense involving no element of dishonesty, like possessing a weapon for a dangerous purpose or assault, uh, then allowing an accused person to be cross-examined about that uh may not meet that test of whether its uh prejudicial uh fact outweighs its probative value. And so here, uh the judge or the court, the Supreme Court of Canada concluded that the trial judge had made an error in, for example, allowing the accused to be cross-examined about his youth record for convictions uh involving violence that had no particular connection to truthfulness, um, and said that just shouldn't have been uh allowed here on that probate versus prejudicial test. Now, with that being said, the Supreme Court of Canada concluded that on the facts of this case, well, that was an error by the trial judge, the uh case against this man was overwhelming. It was a case of a murder by stabbing in an apartment where there were only six people present. By the time the police showed up, uh, all but the accused were still hanging around trying to deal with the dead body in the room. Uh, and the accused was arrested a week later. He had a cut on his hand, his blood was found in the room where the death occurred, and so it was an overwhelming case. And so at the end of the day, the Supreme Court of Canada said, yeah, this was a mistake. There shouldn't have been a cross-examination on uh offenses from when he was a youth that were a long time ago and had nothing to do with honesty. That was an error, and in the future, judges should, you know, apply the principles that they set out here when deciding this kind of an issue. But here, that mistake was harmless in the sense that it could have made no difference uh given just how overwhelmingly strong the case was. So, no difference for this man, his murder conviction will stand, but it's a useful case to know about uh because it sets out those kind of principles that a judge has to consider when deciding uh how a previous criminal record uh should be used and whether uh things are likely to be uh logically probative of whether the person is credible as opposed to just prejudicial by telling somebody that twenty years ago he was convicted of an assault involving uh violence, make making a reasonable person might think, well, maybe he's more likely to have been the murderer in this case. Um that's the latest from the Supreme Court of Canada on Corbett applications and how the criminal record of an accused person should be weighed up uh when they testify.

Adam Stirling: 8:13

All right, we'll take right after that. Michael Mulligan, with Mulligan, Michael, an architect claim for$5,000 into a burn caused by hot oatmeal in an air candle lounge. What happened?

Michael Mulligan: 8:34

I must say it's a deadly circumstance when you're trying to travel through the uh airport. Uh so this was a uh claim brought by a fellow uh who was in the Air Canada Lounge over in Vancouver, uh, and he was serving himself some oatmeal uh out of a like a heated serving dish there, uh, and uh he splashed some oatmeal on his hand uh from the container uh and burned his hand. Uh and uh as a result, he sued Air Canada. Now, there are some interesting elements to it that arose, including because of where he was flying from and to. So the fellow was in Vancouver, uh, but he was on his way to Las Vegas via San Francisco. Now, the reason why that's relevant is that there's a thing called the Montreal Convention, uh, and that's a convention that was entered into by a whole bunch of uh countries uh back in 1999 when that uh was agreed upon, and various countries have been ratifying it since, and it replaced some older agreements. And that Montreal Convention deals with claims for death, injury, and lost luggage uh for people who are on international flights. Now, the reason that thing exists, you might when you think about it for a little bit, uh, it's because without some kind of an international agreement like that, it would be a fraught enterprise to be operating an airline flying into various other countries, because who knows what's going to happen to you. If there's no agreement, you might discover if you're Air Canada and you land in Saudi Arabia, you may find out that losing a bag uh under their local law, if a bag contains, I don't know, uh falconry gear, might be punishable by ten bars of gold or something. Who knows? Right? And so the idea with this Montreal Convention is to bring some uh regularity in order to what is the amount of compensation, how is that to be determined? What is the maximum amount? How's that to work? Uh and that Montreal Convention applies to uh people who are either uh in the course of any operation of an international flight or embarking or disembarking from an international flight. And the convention sets out things like uh the amount of damages that can be awarded for injury and death and various things, and it defines them in terms of this these things called special drawing rights, SDRs. Uh and a special drawing rate is like a mix of various currency values, um uh, and rather than specifying it like in US dollars or Canadian dollars or whatever else to provide again sort of some regularity in this international context. And so to give people an idea, uh the uh maximum amount, uh, for example, if somebody was uh killed in a plane international plane crash would be 128,821 special drawing rights. That's about$175,000 US. It also specifies things like for lost baggage, uh the most you could get is$1,288 special drawing rights. So, like if you convert that to Canadian, multiply that by like 1.8 or thereabouts. So, you know, it's not an insignificant amount, but it's not unlimited. So if your bag of gold bars goes missing on your flight to San Francisco, you're not getting compensated for all of it because of this very convention. Now, how does that apply to this man with the oatmeal in the Air Canada Lounge? Well, the first part of his claim was hey, I can make this claim uh under this uh Montreal Convention, which involves a concept of strict liability for like loss uh uh uh or injury. And so like it's the airline's fault, you know, like if you're flying along and the uh, you know, uh airplane, I don't know, drops 5,000 feet and you bang your head on the ceiling or something, well, you you're just gonna get compensated for the injury that occurred. You don't have to have an argument about did the airline cause it or was that Boeing's fault, or did somebody not bolt the door on whatever? You can make a claim under that and and get some compensation. But the issue here is are you embarking when you're in the air can at a lounge? And so the judge was looking at, or the uh adjudicator, it's a resolution tribunal case, looked at a previous case uh that was relied upon by the man. Uh and it's a case that uh arose in 1975 from the Athens airport, where there were a bunch of passengers who were standing in line at the departure gate waiting to board the flight. Uh and their tickets had been taken, they were just like standing there when some terrorists attacked the line of passengers with hand grenades and firearms. I guess that's why we don't allow hand grenades through the uh security line. Anyways, in that case, back in 1975, the court adjudicating it found that, yeah, those people were embarking on the aircraft, they were like waiting in line to get on when this terrible attack occurred. Uh on the basis that, you know, the accident occurred in a location where the airline had taken their tickets, they're just lining up to get on there, the airline was completely controlling what they were doing at that point, sort of line up here, go up the stairs or whatever they were doing. But here, the man well, the man argued things like, well, I'd cleared security, I was in their lounge, I was waiting for them to, you know, announce when my plane would board. Uh, that didn't fly. And so the adjudicator found that no, he wasn't embarking or disembarking, it's just not quite there yet. Yeah, he's in the airport, yeah, he's gone through security, yeah, it's an Air Canada lounge, but that doesn't really meet the meaning of embarking. You're sort of you're on your way there, but you're not lining up to get on the plane. And so for that reason, no joy on the Montreal Convention uh uh basis of his claim for strict liability from the oatmeal burn. Uh and he had a secondary argument, and the secondary argument was based on another interesting principle that applies quite a bit uh under the what's called the Occupiers Liability Act. And that's a BC piece of legislation, and there's similar things in other provinces. Uh, and it provides essentially that the occupier of a premises, so that could be like, you know, you own the house or you're renting the apartment or whatever, right? You're kind of as your space, right? Leasing the lounge in this case, that wasn't contentious. Air Canada leases the Maple Leaf Lounge. Uh, that the occupier of a premises has a duty of care to ensure that persons will be reasonably safe. And so that's why, for example, if you have a house with stairs or something and they're covered in ice, you would have some obligation to make sure they're reasonably safe, shovel them off, or put some salt down on them, or do something, right? If you don't do that and somebody falls down uh, you know, walking into your store with an ice sheet at the front door or something, you could find you could find yourself liable on the basis that it wasn't reasonably safe. And so the issue in the case then became, given that the Montreal Convention didn't apply, well, uh, was it a uh was there an unreasonable risk of harm caused by this hot oatmeal container? Uh and as the junior pointed out, you know, uh unreasonable risk of harm does not mean perfection. Uh and so you have to decide is this unreasonable? And the man relied on various things. He he managed, I don't know how, to find, and if you can believe it this exists, the operators manual for the oatmeal container. Uh and in the oatmeal container operating manual, it contains various admonitions recommending that, quote, users, close quote, read and familiarize themselves with the operating and safety instructions before operating the container. And to not operate the container unattended, whatever that means, and not to operate the container in a public area and or around children. So the adjudicator figured, okay, well, are those sort of requirements to operate the oatmeal heater? Uh now, the adjudicator on that front, despite yeah, that was in the instruction manual, uh, found that those may be instruction generalized safety tips that would be intended for somebody who's like operating the thing, like maybe setting it up or putting the oatmeal in, or, you know, uh filling it with water, that kind of thing, right? So I I'm not sure why you would need to be uh why it would be unwise to do that while unattended, but found that there was no training or supervision required to serve food from the container, right? You don't need adults to be specially trained to ladle oatmeal uh out of a pot. Uh and so uh the man then pointed out that the manual contained burn hazard warnings saying things like, do not touch hot food or liquids. And uh again, here the adjudicator found that was sort of a common sense recommendation, not something that Air Canada had an obligation to read to the man, don't touch hot things. Uh uh did point out that there was on the front of it a red flame symbol on the front of the oatmeal container, indicating it might be hot. Uh uh also the judge or the adjudicator referred to a previous case from BC, it was a provincial court case. Uh it was against Starbucks, where the defendant burnt herself on hot tea. Um, and in that case, the judge found that uh the fact that the skit the tea was hot enough that it could burn your skin did not mean that the Starbucks was negligent and unreasonably heating up the tea. And so here, while no doubt the oatmeal was hot, and it was accepted that the man did get a burn on his fingers, that wasn't a basis to conclude that Air Canada was unreasonable uh in terms of how hot the oatmeal was. There was no sort of temperature warning that it was excessively hot. Uh the man just his claim was that it was like hot and watery, I think was the description of the oatmeal that splashed on his fingers. Uh and so, given all of that, while accepting that there is a duty of care to be reasonable to prevent um, you know, unreasonable risks to make sure people are reasonably safe. Uh, and uh another factor to point out is that after all this, I guess the man went back. He's really diligent, not only did he get the manual, but Air Canada has since installed a sign next to the oatmeal pot that says warning hot. I guess that's to uh uh you know buttress the flame picture on the front of the oatmeal uh container. Uh that, again, the adjudicator, the fact that there's a warning sign added didn't mean uh that there was an undue, unreasonable risk there before. You know, they were just being particularly careful, I guess, given the oatmeal litigation. And so on all of that, analyzing all of that very carefully, the adjudicator found that Air Canada had not created an unreasonable risk of harm by allowing an adult to serve himself oatmeal from a container. Uh and uh as a result, uh no compensation. So the man was asking for$5,000 uh in the form of$2,000 and something dollars for the fees he incurred going to a medical clinic when he got to Los Angeles, and he wanted another$2,800 roughly for non-pecuniary damages like pain and suffering. Uh and so uh he will uh have to uh uh suffer without the uh$5,000 in compensation. And uh I guess the takeaway here for people is uh if you're ladling yourself out some oatmeal in the lounge, uh be careful. Uh and the airline isn't necessarily on the hook if you manage to splash some on your fingers.

Adam Stirling: 19:29

All right, we've got just over 60 seconds left out of 59.

Michael Mulligan: 19:33

Sure. Final case is one that deals with the issue of when you can reopen a case, like after you lose. And this was a fellow who was suing for falling down some stairs uh in a municipal housing corporation building, and at the end of his case it was uh struck out on a no evidence motion. There was no evidence that uh the housing uh corporation had fallen below its duty of care with respect to the stairs. And so he tried to reopen the case to call more evidence on that point, and he was That was disallowed, and the principle there is that you can only reopen and try again, uh, if uh not allowing that would produce a miscarriage of justice if it's not reopened. And you can't just do it for the asking, and presumptively, once the case is done and there's a decision, that's it. You just can't split it up and try again after you're told no, uh your claim hasn't been made out. So that's the latest from uh trying to reopen your case in the BC Supreme Court.

Adam Stirling: 20:24

Michael Mulligan with Mulligan Defense Lawyers. All right, we'll take a quick break. The news is next.