Character of Accused

This page was last substantively updated or reviewed August 2021. (Rev. # 96796)

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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.

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.

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

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

General bad character or propensity is presumptively inadmissible. The reason is to avoid "moral prejudice" and "reasoning prejudice."

Moral prejudice is where the cases are decided based on the "kind of person" the accused is perceived to be is rather than on what they have done.

Reasoning prejudice is where evidence of similar conduct creates "confusion" and "distracts" the trier of fact from the purpose of focusing on the charges.

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.

Limitations on Type of Good Character Evidence

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. This can include business community reputation. The witness however cannot give any personal opinion on the accused's character.

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.

No Specific Good Acts

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

Jury Instructions

Where the accused puts his character in issue, the judge must instruct the jury on the permissible use of this evidence as being relevant to:

1. the unlikelihood that the appellant committed the offence charged; and
2. the credibility of the appellant as a witness in the proceedings.

Bad Character Rebuttal Evidence

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 (b) prior criminal acts, or (c) similar past bad acts.

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 (CanLII), (DOJ)

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

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.

Bad Character Evidence ("Extrinsic Misconduct")

Bad character evidence is anything that would show the conduct of the accused, beyond what is in the charges, that would be "seen with disapproval by a reasonable person."

The Crown is presumptively prohibited from adducing general evidence of extrinsic misconduct (ie. "bad character") of the accused.

The court is responsible to avoid letting in extrinsic misconduct.

Purpose of Prohibition

Discreditable evidence is consider inherently prejudicial for several reasons:

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.
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"
3. the trier 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"
4. it has tendency to be distracting and consume a great deal of time.

Discreditable Evidence

Evidence that a person is poor or a "braggart" is not necessarily discreditable evidence.

The accused's association with the Hell's Angels and his demonstrative familiarity with the "intricacies of the drug world and the criminal justice system" amounted to inappropriate bad character evidence against an accused tried for drug trafficking was found inadmissible.

Exceptions

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

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

Probative value is measured on the basis of:

• 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:

• 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.

Categorical Exceptions

There are three standard categorical exceptions to the rule against character evidence.

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

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.

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

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.

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

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

Valid Use on Admission

Where prior bad acts are admitted they may be used in assessing the accused's credibility absent a similar fact application. The attack on credibility can include establishing motive, common purpose, or general participation in a scheme.

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.

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.

Relevant and Probative

Context and Narrative

The evidence adduced for context and narrative surrounding the incident at issue may still be admissible even though it includes bad character evidence. This includes any evidence that is necessary for the Crown's case or simply gives background.

However, in all cases the probative value must still outweigh the prejudicial effect.

Importance of Context

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

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

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.

Spree

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

Domestic Relationships

It is at times acceptable for the crown to put in evidence relating to the domestic relationship, including bad character evidence, where it is for the purpose of providing "a proper context in which the jury can assess the specific allegations made against the accused." However, where the Crown leads such evidence the accused is entitled to rebut the character evidence by presenting their own version without putting the accused's character in issue.

Motive

Proof of motive can constitute a form of bad character evidence and is not presumptively admissible but can be admitted in exceptional circumstances.

The judge must be satisfied that the probative value outweighs the prejudicial effect.

The value of the motive will depend on how speculative it is. Motive evidence that gives "insight into the background and relationship with the victim" is considered highly probative and is likely admissible.

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.

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.

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.

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."

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

Domestic Relationships

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."

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

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. 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."

Often this evidence is admitted as "narrative."

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

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.

Other Examples

Gang Association

Evidence of an accused gang affiliation or membership is generally bad character evidence. Any evidence of unrelated criminal activity is considered "particularly dangerous."

This type of gang-related evidence creates prejudice by inviting an inference that the accused is likely to have committed the offence. It also may also "insinuate that the accused embraces a positive attitude towards the criminal lifestyle."

Gang affiliation evidence is permissible where it provides necessary "context or narrative, to establish animus or motive, or to establish the accused's state of mind or intention, among other purposes."

Joint Trials

In a joint trial, an accused is permitted to adduce prejudicial evidence of bad character relating to a co-accused.

The Crown can not use that type of bad character evidence to support its case in terms of establishing facts or attacking credibility.

The risk of prejudice is not different simply because it was adduced by a co-accused rather than the Crown.

It is necessary that there be a "sound evidentiary foundation" before a co-accused can introduce bad character evidence.

The judge must "balance" the fair trial rights of both accused.

Jury Trial

In a jury trial, the judge must give clearly defined limiting instructions on what use the evidence may have.

The instructions must include:

1. identify the evidence to which it applies;
2. define the permitted use of the evidence (the positive instruction); and
3. describe the prohibited use of the evidence (the negative instruction).

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

• Character of Non-Accused Persons
• Similar Fact Evidence
• Alternative Suspect Evidence