Character of Non-Accused Persons

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 95330)

General Principles

See also: Character of Accused

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.[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), 324 CCC (3d) 109, per Watt JA, at para 66 ("...as a general rule, the character or disposition of the victim of an offence is irrelevant")
    R v Diu, 2000 CanLII 4535 (ON CA), 49 OR (3d) 40, per Sharpe JA, at para 39 ("In general, the character of the victim of a crime is irrelevant and neither the accused nor the Crown may lead such evidence. ")
    R v Hermkens, 2021 ABQB 1016 (CanLII), at para 142
    contra R v Borden, 2017 NSCA 45 (CanLII), 349 CCC (3d) 162, per Beveridge JA, at para 130 ("There was no principle in play that could legitimately restrict the appellant’s right to cross-examine the complainant on his character, including of course each and every one of his prior convictions. Further, the complainant’s reputation for violent behaviour ... was well-known to the appellant.")
  2. ↑ Vant, supra, at para 66 ("This general rule is not unyielding where the evidence of the disposition of the victim relates to a material issue and where its probative value outweighs its prejudicial effect")
    Diu, supra, at para 41
    R v Scopelliti, 1981 CanLII 1787 (ON CA), 63 CCC (2d) 481, per Martin JA, 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]

  1. ↑ R v Gonzague, 1983 CanLII 3541 (ON CA), 4 CCC (3d) 505, per Martin JA
    R v Clarke, 1998 CanLII 14604 (ON CA), per Rosenberg JA

Habit

There must be "sufficient regularity" in the conduct forming the habit in order to lend support of the strength of the probative value.[1] Habit that are parts of the "ordinary affairs of life" are not usually consistent enough to be considered "invariable" to be probative.[2] The determination will vary from case-to-case.[3]

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."[4]

  1. ↑ R v Vant, 2015 ONCA 481 (CanLII), 324 CCC (3d) 109, per Watt JA, at para 68
  2. ↑ Vant, ibid., at para 68
  3. ↑ Vant, ibid., at para 68
  4. ↑ Vant, ibid., at para 67

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.[1]

The deceased's criminal record for non-violent offences is not probative.[2] To admit such evidence would invite the prohibited reasoning that the victim's "demise was a civic improvement."[3]

  1. ↑ R v Head, 2014 MBCA 59 (CanLII), 310 CCC (3d) 474, per Mainella JA, at para 16
    R v Sims, 1994 CanLII 1298 (BC CA), 87 CCC (3d) 402, per Mainella JA at 421-26 (B.C. C.A.)
  2. ↑ Head, supra, at para 15
  3. ↑ R v Varga (R.L.), 2001 CanLII 8610 (ON CA), 150 OAC 358, per Doherty JA, at para 71, leave to appeal to SCC ref’d, [2002] SCCA No 278

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.[1] Scopelliti evidence must be of "sufficiently probative value for the purpose for which it is tendered to justify its admission."[2]

The admission of Scopelliti 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

Scopelliti 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 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 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.[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), 63 CCC (2d) 481, per Martin JA
  2. ↑ Scopelliti, ibid.
  3. ↑ R v Dolph, 2003 MBQB 294 (CanLII), 179 Man R (2d) 307, per Oliphant ACJ, at para 14
  4. ↑ R v Watson, 1996 CanLII 4008 (ON CA), 108 CCC (3d) 310, per Doherty JA
    R v Hamilton, 2003 BCCA 490 (CanLII), [2003] BCJ No 2114, per Rowles JA ("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] OJ No 1112(*no CanLII links) , at para 54
  7. ↑ R v Patterson, 2006 CanLII 2609 (ON CA), 205 CCC (3d) 171, per LaForme JA
  8. ↑ Scopelliti, supra
  9. ↑ R v Yaeck, 1991 CanLII 2732 (ON CA), 68 CCC (3d) 545, per Osborne JA - Scopelliti evidence rejected
  10. ↑ Dolph, supra, at para 18
    R v Varga, 2001 CanLII 8610 (ON CA), 159 CCC (3d) 502, per Doherty JA, 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), 63 CCC (2d) 481, per Martin JA (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), per McGillivray JA
  3. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), 300 CCC (3d) 181, per Watt JA, at para 57
  4. ↑ R v Neville, 2013 CanLII 9086 (NLSCTD), per Thompson J
  5. ↑ Stubbs, supra, at para 57
    R v Moo, 2009 ONCA 645 (CanLII), 247 CCC (3d) 34, per Watt JA, at para 98
    R v Cudjoe, 2009 ONCA 543 (CanLII), 68 CR (6th) 86, per Watt JA, at para 64

See Also

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