Character of Non-Accused Persons

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General Principles

See also: Character of Accused

Character or disposition evidence of a victim of crime is generally irrelevant.[1] Exception exists where the evidence relates specifically to a "material issue and where its probative value outweighs its prejudicial effect".[2]

  1. R v Vant, 2015 ONCA 481 (CanLII) at para 66
    R v Diu (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.), at para 39
  2. Vant at para 66
    Diu, ibid. at para 41
    R v Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 CCC (2d) 481 (Ont. C.A.), at p. 493

Types of Evidence

Reputation
While it is not permitted to ask a witness about the honesty of another witness, a witness may sometimes be asked as to the reputation for honesty in the community of another witness.[1]

Habit
There must be "sufficient regularity" in the conduct forming the habit in order to lend support of the strength of the probative value.[2] Habit that are parts of the "ordinary affairs of life" are not usually consistent enough to be considered "invariable" to be probative.[3] The determination will vary from case-to-case.[4]

Evidence of habit (a person's regular response to a repeated situation, often being semi-automatic) is considered of "greater probative value than evidence of general traits of character or disposition".[5]

Criminal Record
The criminal record may assist in proving the victim had a violent disposition to carry a weapon in altercation increasing the likelihood that the victim reached for a gun at the time of being shot.[6]

The deceased's criminal record for non-violent offences is not probative.[7] To admit such evidence would invite the prohibited reasoning that the victim's "demise was a civic improvement".[8]

  1. R v Gonzague (1983) 4 CCC (3d) 505 (ONCA)(*no link)
  2. R v Vant, 2015 ONCA 481 (CanLII) at para 68
  3. Vant, ibid. at para 68
  4. Vant, ibid. at para 68
  5. Vant, ibid. at para 67
  6. Head at para 16
    R v Sims, 1994 CanLII 1298 (BC CA), (1994), 87 CCC (3d) 402 at 421-26 (B.C. C.A.)
  7. R v Head, 2014 MBCA 59 (CanLII), at para 15
  8. R v Varga (R.L.) 2001 CanLII 8610 (ON CA), (2001), 150 O.A.C. 358 at para 71, leave to appeal to S.C.C. ref’d, [2002] S.C.C.A. No. 278

Character of Victim Relating to Self-Defence ("Scopeletti" Evidence)

Where self-defence is raised, the accused may elicit evidence of the victim's tendency of being an aggressor and to establish an attack upon the accused by the victim. This is known as Scopeletti evidence.[1] Scopeletti evidence must be of "sufficiently probative value for the purpose for which it is tendered to justify its admission".[2]

The admission of scopeletti evidence is at the discretion of the trial judge.[3]

Relevancy is the only limit on prior misconduct of a deceased in where self-defence has been raised.[4] Similarly, evidence of a third-party's tendency for violence is admissible where it is probative to a trial issue.[5]

Violence and Aggression
Scopeletti evidence of aggression or violence will include evidence of intimidation.[6]

Criminal Record
The accused is generally permitted to introduce evidence of the deceased's victim's prior record as well as transcripts of the a related proceedings to establish a propensity for violence.[7]

Awareness of Reputation
The victim's tenancy to violence or intimidation does not necessarily have to be known by the accused.[8]

Prejudice of Scopeletti Evidence
The judge must be careful that Scopeletti evidence is not overly prejudicial by raising "feelings of hostility against the deceased" and prevent misuse.[9]

Concerns for misuse of this evidence can often be addressed by a careful jury instruction.[10]

  1. R v Scopelliti, 1981 CanLII 1787 (ON CA), (1981), 63 CCC (2d) 481 (Ont. C.A.)
  2. R v Scopeletti, ibid.
  3. R v Dolph, 2003 MBQB 294 (CanLII) at para 14
  4. R v Watson, 1996 CanLII 4008 (ON CA), (1996), 108 CCC (3d) 310 (Ont. C.A.)
    R v Hamilton, 2003 BCCA 490 (CanLII), [2003] BCJ No. 2114 ("While character evidence relating to an accused is generally excluded on policy grounds, no policy rule excludes relevant evidence of the bad character of the deceased.")
  5. Scopelliti, supra
  6. R v Hines, [2001] O.J. No. 1112(*no link) at para 54
  7. R v Patterson, 2006 CanLII 2609 (ON CA)
  8. Scopelliti, supra
  9. R v Yaeck, 1991 CanLII 2732 (ON CA) - scopeletti evidence rejected
  10. Dolph, supra at para 18
    R v Varga 2001 CanLII 8610 (ON CA), (2001), 159 CCC (3d) 502 at para 42

Homicide

In homicides where a self-defence argument has been raised, the accused may adduce evidence of the victim's reputation for violence in order to show that the victim was likely the aggressor and may have attacked the accused first.[1] It may also be led where the accused knew of the victim's reputation for violence which was well founded and so the accused would have acted reasonably.[2]

Before the evidence can be considered, the character evidence "must be capable of establishing animus or motive".[3] In a homicide where the defence advances evidence of the deceased's propensity for violence, this will not necessarily entitle the Crown to adduce evidence of the accused's propensity for violence by way of his criminal record.[4]

In domestic homicides bad character evidence may be admitted to "show the nature of the relationship between the principals, or animus or motive on the part of the accused. This evidence is relevant to prove the identity of the victim or deceased’s killer and the state of mind that accompanied the unlawful killing".[5]

  1. R v Scopelliti, 1981 CanLII 1787 (ON CA) (evidence of violence was limited to “the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased”)
  2. R v Doherty, 1984 ABCA 199 (CanLII)
  3. R v Stubbs, 2013 ONCA 514 (CanLII) at para 57
  4. R v Neville, 2013 CanLII 9086 (NL SCTD)
  5. Stubbs, supra at para 57
    Moo, supra, para 98
    Cudjoe, supra, at para 64

See Also