Character of Accused

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General Principles

Character evidence of the accused consists of any evidence that relates to the accused's conduct or reputation outside of the period of the alleged offence in order to make the inference that during the time of the alleged offence the accused had acted in conformity with that conduct or reputation. [1]

This evidence can take the form of:

  1. reports of the accused's reputation in the community
  2. the opinion of someone who knows the accused personally
  3. specific past acts from which conduct can be inferred.

Whether the evidence is admissible depends on whether it is good character or bad character. The former being generally permissible and the latter being generally impermissible.

Any time bad character evidence is admitted under one of the exceptions the judge must also assess whether the probative value outweighs the prejudicial effect.[2]

Before bad character can be admitted the judge must be satisfied that:[3]

  • the evidence was relevant to an issue at trial
  • outside of accused general bad character
  • probative value out weighs the prejudicial effect

General bad character or propensity is presumptively inadmissible.[4] The reason it to avoid "moral prejudice" and "reasoning prejudice".[5]

  1. Discreditable evidence is any "conduct or information about the accused that is morally objectionable or apt to demonstrate that he or she has a contemptible or reprehensible character". Paciocco and Stuesser, The law of Evidence 6th Ed. (2011) at 51
  2. R v Villeda, 2010 ABCA 351 (CanLII),
  3. Villeda
  4. R v Graham, 2015 ONCA 113 (CanLII) at para 23
  5. Graham

Good Character Evidence

The defence may adduce certain good character of the accused.

An accused may call witnesses who will testify to his good character as relevant to show the accused is credible or that the accused is unlikely to have committed the offence.[1]

The evidence of good character is limited to the accused's general reputation in the community with respect to relevant traits such as honesty, morality and humanity.[2] The witness however cannot give any personal opinion on the accused's character.[3] This can include business reputation.[4]

Specific good acts of the accused are not admissible to show good character.[5]

The crown may cross-examine the accused's character witness on the grounds of their belief and the particular facts from which they based their conclusion.[6]

  1. R v Tarrant, 1981 CanLII 1635 (ON CA), (1981), 63 CCC (2d) 385 (Ont. C.A.)
    R v Elsmori, (1985), 23 CCC (3d) 503 (Ont. C.A.)(*no link)
    R v Kootenay, (1994), 87 CCC (3d) 109 (Alta. C.A.), 1994 ABCA 24 (CanLII)
  2. R v Mohan 1994 CanLII 80 (SCC), (1994), 89 CCC (3d) 402 (SCC) at p. 415
    R v Clarke 1998 CanLII 14604 (ON CA), (1988), 129 CCC (3d) 1 (Ont. C.A.)
    R v Boles (1979), 43 CCC (3d) 414 (Ont. C.A.)(*no link)
    R v Dees (1978), 40 CCC (2d) 58 (Ont. C.A.)(*no link)
    R v S.(R.J.), (1985), 19 CCC (3d) 115 (Ont. C.A.)(*no link)
  3. R v Clarke
    R v Profit, 1992 CanLII 7513 (ON CA)
    R v Grosse, (1983), 9 CCC (3d) 465, 61 NSR (2d) 54 (NSCA) at pp. 473-74
  4. R v Levasseur, 1987 ABCA 70 (CanLII), (1987) 35 CCC (3d) 136 (ABCA)
  5. R v Long (1902) 5 CCC 493 (Que. K.B.)(*no link) per Wurtele, J. at p. 498
    R v Knuff, 1980 ABCA 23 (CanLII) at para 21 citing Long
    R v Profit, 1992 CanLII 7513 (ON CA)
  6. Watt's Manual of Criminal Evidence 2010 ss. 31.02

Bad Character Rebuttal Evidence

See also: Proof of Previous Conviction

Where character evidence has been adduced by the accused, the Crown may only adduce bad character evidence of (a) general reputation of the accused in the community[1] (b) prior criminal acts, or (c) similar past bad acts.[2]

Section 666 also permits the Crown to adduce evidence of bad character of a prior criminal record to rebut the good character evidence:

Evidence of character
666. Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.
R.S., c. C-34, s. 593.


CCC

The Crown may adduce similar past bad acts to rebut good character evidence.[3]

An outstanding charge against any witness cannot be used as evidence of character due to the presumption of innocence. He also cannot be cross-examined on outstanding charges.[4]

  1. R v Long (1902) 5 CCC 493 (Que. K.B.)(*no link)
    R v Knuff, 1980 ABCA 23 (CanLII) at para 21
  2. R v Gaballa, 1992 CanLII 3903 (QC CA)
  3. Guay v The Queen, 1978 CanLII 148 (SCC), [1979] 1 SCR 18
  4. R v Tomlinson, 2014 ONCA 158 (CanLII), at para 77

Bad Character Evidence

The Crown is prohibited from adducing general evidence of extrinsic misconduct of the accused; what is often called "bad character" evidence.[1]

Purpose
Discreditable evidence is consider inherently prejudicial for several reasons:[2]

  1. the trier of fact may be influenced to believe the accused has bad character or is a bad person and so is more likely to have committed the offence.[3]
  2. the trier or fact may "have a tendency to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged"[4]
  3. the tier of fact may become confused by concentrating on whether the accused actually committed the extrinsic misconduct and their decision "about the extrinsic misconduct may be substituted for the verdict on the offence charged"[5]

Discreditable Evidence
Evidence that a person is poor or a "braggart" is not necessarily discreditable evidnece.[6]

General Exception
There are exception to this rule where, on a balance of probabilities, the probative value outweighs the prejudicial effect.[7]

Consideration of probative value against the prejudicial effect includes considering the "specific link" between the evidence and the issue at trial. [8]

Probative value is measured on the basis of: [9]

  • the strength of the evidence
  • the extent to which it supports the inferences sought;
  • the extent to which the matters it presents to prove are at issue.

Prejudice is measured on the basis of:[10]

  • how discreditable the evidence is;
  • the extent to which is would support improper propensity reasoning;
  • the extent to which it would confuse issues;
  • the accused ability to respond to the evidence;

Prejudices can sometimes be mitigated by the use of limiting instructions or the trier of fact.[11]


Categorical Exceptions
There are three categorical exceptions to the rule against character evidence.[12]

  1. where the evidence is relevant to an issue in the case after balancing the probative value and prejudicial effect
  2. where the accused puts her character in issue
  3. where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility[13]

The rules against leading character can also be ignored in limited circumstances such as where it simply shows context or is part of a narrative.[14]

Where bad character comes out in evidence during a jury trial, a judge should provide some limiting instructions on the use of such evidence.[15]

The standard of review of a judge's ruling whether to allow bad character evidence is one of deference unless the analysis was unreasonable, was a legal error, or misapprehended material evidence.[16]

Limiting instructions are not required on admitting this type of evidence.[17]

Where bad character can be admitted, the prior criminal record as well as the facts underlying the record are admittable.[18]

  1. R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908 at para 31 and 36
    R v Moo, 2009 ONCA 645 (CanLII), 247 CCC (3d) 34, at para 96
    R v Cudjoe, 2009 ONCA 543 (CanLII), 68 C.R. (6th) 86, at para 63
  2. R v Stubbs, 2013 ONCA 514 (CanLII) at para 55
  3. R v Batte (2000), 49 O.R. (3d) 321 (CA), 2000 CanLII 5750 at para 100
  4. R v M.T., 2012 ONCA 511 (CanLII) at para 81
  5. R v MT 2012 ONCA 511 (CanLII) at para 81
    R v D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, at pp. 127-128
  6. E.g. R v Nurse 2014 ONSC 2311 At para 69 to 71
  7. Handy at para 41
    Stubbs at para 56
    R v Nurse, 2014 ONSC 2311 (CanLII) at para 35 ("If evidence is found to be discreditable, the evidence may only be admitted where the probative value outweighs the prejudicial effect.")
  8. Nurse at para 35
  9. R v Hassandzara 2012 ONSC 6440
  10. Nurse at para 38
  11. R v McFarlane, [2006] OJ No 4958 (ONSC)
  12. R v G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, at para 63
  13. See: Lucas v The Queen, [1963] 1 CCC 1 (S.C.C.) and
    R v G. (S.G.)
    R v Chambers, [1990] 2 SCR 1293, 1990 CanLII 47
  14. E.g. R v Lamirande, 2002 MBCA 41 (CanLII), (2002), 164 CCC 3d 299 (MBCA)
    R v Bernardo (1995), 42 CR (4th) 85 (Ont Gen Div)
  15. R v Spied, (1985), 20 CCC (3d) 534 (Ont. C.A.),
    R v G. (S.G.)
    R v Reierson, 2010 BCCA 381 (CanLII), [2010] BCJ No. 1619 (BCCA)
    R v Grandinetti, 2003 ABCA 307 (CanLII), aff’d 2005 SCC 5, [2005] 1 SCR 27
  16. Stubbs at para 58
  17. Stubbs at para 59
  18. R v Jackson, 2013 ONCA 632 (CanLII) at para 47

When Character is Put in Issue

Where the accused places his character at issue, the Crown is entitled to rebut that evidence. Thus, there is considerable importance in determining when character is put into issue. This is most often where the accused is testifying and on either direct or cross he adds information that constitutes character evidence, thus engaging s.666.

An accused who claims not to be the "type of guy" who would commit the offence puts his character at issue.[1]

An accused who mentions his "sexual morality" by affirming his commitment to his partner in a murder trial of the partner constitutes putting character at issue.[2]

  1. R v Morris, 1978 CanLII 168 (SCC), [1979] 1 SCR 405
  2. R v McFadden, 1981 CanLII 494 (BC CA), (1981) 65 CCC (2d) 9 (BCCA)

Relevant and Probative

Context and Narrative

Evidence adduced for context and narrative may still be admissible even though it includes bad character evidence.[1] This includes any evidence that is necessary for the Crown's case or simply gives background.[2]

However, the probative value must still outweigh the prejudicial effect.[3]

The trier-of-fact should not have to decide the case within a vacuum and must provide context and perspective.[4]

Context will often be necessary to explain how the offence came about and the reasonableness of the parties.[5]

Evidence of past acts during a crime spree may provide prejudicial effect but it considered necessary to establish the context of the offence.[6]

  1. Sand, 2003 MBQB 76 (CanLII), at para 9
    McWilliams, Canadian Criminal Evidence, Exclusionary Rules and Exceptions, 10-8: ("In some cases, it is unavoidable that the prosecution adduce evidence as part of its case to set the milieu and activity of the accused and the other witnesses to show the context or narrative even though it reveals that they are involved in criminal activity.")
    R v G. (L. W.) reflex, (1996), 49 C. R. (4th) 178 at para 15
  2. Sand at para 10
  3. Sand at para 10
  4. R v Ma (1978), 44 C. C. C. (2d) 511 (Ont. C. A.) at page 519: ("Clearly the evidence in dispute in this case has more than trifling probative force. It places the charge against the appellant in perspective: without such obviously relevant evidence, the jury would have decided the question of guilt in a vacuum.")
  5. R v Cardinal, 1998 ABCA 50 (CanLII) at para 6 - allowed to explain "how" and "why" the accused was able to commit the offence
  6. R v Cardinal, at para 6

Motive

Motive is never necessary to be proven for an offence, however, evidence of motive may assist in proof of an accused’s participation in an offence and of the state of mind with which the offence was committed.[1]

The court has discretion to accept prior assaultive behaviour against a victim proximate to the offence itself as similar fact evidence to establish motive and animus against the victim.[2]

Where the defence presents evidence suggesting a third-party committed the offence and has a motive, the crown may call evidence reply evidence on the accused's disposition or propensity.[3]

Reliance on the motivation of an accused to fabricate can amount to an error of law when it "impairs the presumption of innocence and shifts the burden of proof".[4]

The accused's level of poverty alone is not sufficient to support an inference of motive to commute an act.[5]

  1. Plomp v The Queen (1963) 110 C.L.R. 234 (H.C.), at pp. 243 and 249-50;
    R v Griffin, 2009 SCC 28 (CanLII), [2009] 2 SCR 42, at paras 59-60;
    R v Candir, 2009 ONCA 915 (CanLII), (2009), 250 CCC (3d) 139 (Ont. C.A.), at para 51.
  2. Similar Fact Evidence
    e.g. R v Kayaitok, 2017 NUCA 1 (CanLII), at paras 12 to 16
  3. R v M.(W.) 1996 CanLII 1214 (ON C.A.), (1996), 112 CCC (3d) 117 (Ont. C.A.), at pp. 123-24, aff’d 1998 CanLII 831 (S.C.C.), [1998] 1 SCR 977.
  4. R v JAH, 2012 NSCA 121 (NSCA) at para 11
  5. R v Mensah, 2003 CanLII 57419 (ONCA)
    R v Phillips, 2008 ONCA 726 (CanLII) at para 51

Extrinsic Misconduct

Evidence of misconduct disclosed through a consent wiretap between the accused and an undercover may be permitted to give full context to the trier-of-fact. Proper instructions on its use should be given.[1]

  1. R v Bonisteel, 2008 BCCA 344 (CanLII)

Domestic Violence

Courts will often admit evidence of prior disrepute in order to assist a trier-of-fact in understanding the "nature of the relationship in which the violence is said to have occurred".[1]

The conduct will have significant probative value where the relationship demonstrates the accused "historically acted with animus towards the Complainant" in sufficiently similar circumstances.[2]

In offences of domestic violence, it is important for the alleged victim to provide context in order to avoid having her discredited unfairly. Past acts that reveal ill-will and animus towards the alleged victim is acceptable.[3] It must be necessary to set out the true nature of the relationship between the parties, particularly with a view to evidence that shows "dominance, control, possessiveness and fear".[4]

Often this evidence is admitted as "narrative".[5]

However, it can be rejected for its danger of being "propensity" evidence.[6]

In a domestic homicide, the crown may introduce evidence of the pas relationship between the victim and accused for the purpose of establishing motive, animus and state of mind. [7]

  1. R v D.S.F., 1999 CanLII 3704 (ON CA), (1999), 132, CCC (3d) 97 (Ont. C.A.)
    R v P.S. (2007) 211 CCC (3d) 45 (Ont. C.A.)
  2. R v D.P., 2009 CanLII 33056 (ON SC), at para 28
  3. R v S.B. [1996] OJ NO 1187 (Gen. Div.) at para 49
    R v Sand, 2003 MBQB 76 (CanLII), [2003] MJ No 150
  4. S.B. at para 45
  5. e.g. see Sand at para 12
  6. R v Batte (2000), 2000 CanLII 5750 (ON CA), 145 CCC (3d) 449 (ONCA)
  7. R v Moo 2009 ONCA 645 (CanLII)
    See also S.B.
    R v Peterffy, 2000 BCCA 132 (CanLII)
    R v Misir, 2001 BCCA 202 (CanLII) at para 18

Cut-Throat Defence

In a trial with multiple defendants, an accused person may adduce evidence of the co-accused's bad character for the purpose of establishing a greater likelihood of the co-accused's responsibility for the offence. However, the evidence may only be used to establish the innocence of the accused but not the guilt of the co-accused.

See Also