Caractère des personnes non accusées

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General Principles

Bad character of a witness can be used in several ways including to undermine their credibility or to establish propensity for violence in a self-defence case.

Character of Victim

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

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.

Habit

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

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."

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.

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

Character of Victim Relating to Self-Defence ("Scopelliti" 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 Scopelliti evidence. Scopelliti evidence must be of "sufficiently probative value for the purpose for which it is tendered to justify its admission."

The admission of Scopelliti evidence is at the discretion of the trial judge.

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

Violence and Aggression

Scopelliti evidence of aggression or violence will include evidence of intimidation.

Criminal Record

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

Awareness of Reputation

The victim's tenancy to violence or intimidation does not necessarily have to be known by the accused.

Prejudice of Scopelliti Evidence

The judge must be careful that Scopelliti evidence is not overly prejudicial by raising "feelings of hostility against the deceased" and prevent misuse.

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

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. 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.

Before the evidence can be considered, the character evidence "must be capable of establishing animus or motive." 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.

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."

See Also

• Character of Accused