Character of Accused: Difference between revisions

Latest revision as of 22:32, 20 November 2024

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

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General Principles

See also: Cross-Examinations#Cross-Examination of the Accused and Character of Non-Accused Persons

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:

reports of the accused's reputation in the community
the opinion of someone who knows the accused personally
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 outweighs the prejudicial effect

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

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.^[6]

Reasoning prejudice is where evidence of similar conduct creates "confusion" and "distracts" the trier of fact from the purpose of focusing on the charges.^[7]

↑ 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
↑ R v Villeda, 2010 ABCA 351 (CanLII), 265 CCC (3d) 433, per curiam
↑ Villeda
↑ R v Graham, 2015 ONCA 113 (CanLII), 330 OAC 394, per Weiler JA, at para 23
↑ Graham, ibid.
↑ R v Norris, 2020 ONCA 847 (CanLII), per Fairburn ACJ at para 23 ("Moral prejudice results where triers of fact decide cases, not based on what the accused has done, but based on the kind of person the trier of fact perceives the accused to be")
see also Handy at para 31 and 36
R v Lo, 2020 ONCA 622 (CanLII), 393 CCC (3d) 543, per Watt JA, at para 110
↑ Norris, supra at para 23 ("Reasoning prejudice results where similar act evidence gives rise to confusion and distracts the trier of fact from its proper focus on the charges before the court.")

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]

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.^[2] This can include business community reputation.^[3] The witness however cannot give any personal opinion on the accused's character.^[4]

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.^[5]

No Specific Good Acts

Specific good acts of the accused are not admissible to show good character.^[6]

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:^[7]

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

↑ R v Tarrant, 1981 CanLII 1635 (ON CA), 63 CCC (2d) 385, per Martin JA
R v Elsmori, 1985 CanLII 3545 (ON CA), 23 CCC (3d) 503, per Dubin JA
R v Kootenay, 1994 ABCA 24 (CanLII), 87 CCC (3d) 109, per Kerans JA
↑ R v Mohan, 1994 CanLII 80 (SCC), 89 CCC (3d) 402, per Sopinka J, at p. 415 (CCC)
R v Clarke, 1998 CanLII 14604 (ON CA), 129 CCC (3d) 1, per Rosenberg JA
R v Close, 1982 CanLII 1914 (ON CA), 68 CCC (2d) 105, per Brooke JA
R v Demyen, 1976 CanLII 970 (SK CA), 31 CCC (2d) 383
R v Boles (1979), 43 CCC (3d) 414(*no CanLII links)
R v Dees, 1978 CanLII 2269 (ON CA), 40 CCC (2d) 58, per Arnup JA
R v S(RJ), 1985 CanLII 3575 (ON CA), 19 CCC (3d) 115, per Lacourciere JA
R v Gonzague, 1983 CanLII 3541 (ON CA), 4 CCC (3d) 505, per Martin JA
↑ R v Levasseur, 1987 ABCA 70 (CanLII), 35 CCC (3d) 136, per Harradence JA
↑ Clarke, supra
R v Profit, 1992 CanLII 7513 (ON CA), 16 CR (4th) 332, per Goodman JA
R v Grosse, 1983 CanLII 3501 (NS CA), 9 CCC (3d) 465, per Morrison JA, at pp. 473-74
↑ Watt's Manual of Criminal Evidence 2010 ss. 31.02
↑ R v Long, 1902 CanLII 129 (QC CA), (1902) 5 CCC 493, per Wurtele J, at p. 498
R v Knuff, 1980 ABCA 23 (CanLII), 52 CCC (2d) 523, per Moir JA, at para 21 citing Long
R v Profit, 1992 CanLII 7513 (ON CA), 16 CR (4th) 332, per Goodman JA
↑ R v Potts, 2018 ONCA 294 (CanLII), per Watt JA, at paras 60 to 61

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 (CanLII), (DOJ)

Note up: 666

Defined terms: accused (s. 2) and prosecutor (S. 2)

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]

↑ R v Long, 1902 CanLII 129 (QC CA), 5 CCC 493 (Que. K.B.), per Wurtele J
R v Knuff, 1980 ABCA 23 (CanLII), 52 CCC (2d) 523, per Moir JA, at para 21
↑ R v Gaballa, 1992 CanLII 3903 (QC CA), 74 CCC (3d) 84, per Fish JA
↑ Guay v The Queen, 1978 CanLII 148 (SCC), [1979] 1 SCR 18, per Pigeon J
↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 77

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."^[1]

The Crown is presumptively prohibited from adducing general evidence of extrinsic misconduct (ie. "bad character") of the accused.^[2]

The court is responsible to avoid letting in extrinsic misconduct.^[3]

Purpose of Prohibition

Discreditable evidence is consider inherently prejudicial for several reasons:^[4]

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.^[5]
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"^[6]
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"^[7]
it has tendency to be distracting and consume a great deal of time.^[8]

Discreditable Evidence

Evidence that a person is poor or a "braggart" is not necessarily discreditable evidence.^[9]

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.^[10]

↑ R v Bos, 2016 ONCA 443 (CanLII), 131 OR (3d) 755, per Tulloch JA, at para 72
R v Johnson, 2010 ONCA 646 (CanLII), 262 CCC (3d) 404, per Rouleau JA, at para 90
R v Bishop, 2013 NUCA 3 (CanLII), NJ No 3 per Côté JA, at para 63
↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at paras 31 and 36
R v Moo, 2009 ONCA 645 (CanLII), 247 CCC (3d) 34, per Watt JA, at para 96
R v Cudjoe, 2009 ONCA 543 (CanLII), 68 CR (6th) 86, per Watt JA, at para 63
R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, per Cory J, at para 63
R v Camara, 2021 ONCA 79 (CanLII), per Watt JA
↑ R v Peters, 1991 CanLII 7670 (SK QB), 96 Sask R 177, per Matheson J
↑ R v Stubbs, 2013 ONCA 514 (CanLII), 300 CCC (3d) 181, per Watt JA, at para 55
↑ R v Batte, 2000 CanLII 5750 (ON CA), 49 OR (3d) 321, per Rosenberg JA, at para 100
↑ R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 81
↑ MT, ibid., at para 81
R v LED, 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J, at pp. 127-128
↑ Handy, supra, at para 37
Bos, supra at para 73
↑ E.g. R v Nurse, 2014 ONSC 2311 (CanLII), per Coroza J, at paras 69 to 71
↑ R v Cook, 2020 ONCA 731 (CanLII), per Trotter JA

Exceptions

There are exception to this rule where, on a balance of probabilities, the probative value outweighs the prejudicial effect.^[1]

Consideration of probative value against the prejudicial effect includes considering the "specific link" between the evidence and the issue at trial. ^[2]

Probative value is measured on the basis of: ^[3]

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:^[4]

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.^[5]

Categorical Exceptions

There are three standard categorical exceptions to the rule against character evidence.^[6]

where the evidence is relevant to an issue in the case after balancing the probative value and prejudicial effect^[7]
where the accused puts her character in issue
where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility^[8]

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.^[9]

Where bad character comes out in evidence during a jury trial, a judge should provide some limiting instructions on the use of such evidence.^[10]

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.^[11]

Limiting instructions are not required on admitting this type of evidence.^[12]

Where bad character can be admitted, the prior criminal record as well as the facts underlying the record are admittable.^[13]

↑ Handy, supra, at para 41
Stubbs, supra, at para 56
Nurse, supra, at para 35 ("If evidence is found to be discreditable, the evidence may only be admitted where the probative value outweighs the prejudicial effect.")
↑ Nurse, supra, at para 35
↑ R v Hassandzara, 2012 ONSC 6440 (CanLII), per Molloy J
↑ Nurse, supra, at para 38
↑ R v McFarlane, 2006 CanLII 40794 (ON SC), [2006] OJ No 4958 (ONSC), per Clark J
↑ R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, per Cory J, at para 63
↑ R v Camara, 2021 ONCA 79 (CanLII), per Watt JA at para 50
Moo at para 97
Handy at para 41
G(SG) at para 65
↑ See: R v Lucas, 1962 CanLII 625 (SCC), [1963] 1 CCC 1, per Kerwin CJ
SGG, supra
R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, per Cory J
↑ e.g. R v Lamirande, 2002 MBCA 41 (CanLII), 164 CCC (3d) 299, per Scott CJ
R v Bernardo (1995), 42 CR (4th) 85 (Ont Gen Div)(*no CanLII links)
↑ R v Speid, 1985 CanLII 3480 (ON CA), 20 CCC (3d) 534, per Martin JA
SGG, supra
R v Reierson, 2010 BCCA 381 (CanLII), [2010] BCJ No 1619, per Newbury JA
R v Grandinetti, 2003 ABCA 307 (CanLII), 178 CCC (3d) 449, per McFadyen JA aff’d 2005 SCC 5 (CanLII), [2005] 1 SCR 27
↑ Stubbs, supra, at para 58
↑ Stubbs, supra, at para 59
↑ R v Jackson, 2013 ONCA 632 (CanLII), 301 CCC (3d) 358, per Gillese JA, at para 47

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.^[1] The attack on credibility can include establishing motive, common purpose, or general participation in a scheme.^[2]

↑ R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, per Cory J, at pp. 66, 68
R v Davison, DeRosie and MacArthur, 1974 CanLII 787 (ON CA), 20 CCC (2d) 424, per Martin JA
R v Sheriffe, 2015 ONCA 880 (CanLII), at para 70 ("Another equally uncontroversial rule emerges in cases where evidence of extrinsic misconduct or bad character is admitted and an accused testifies in his or her own defence. In these cases, the trier of fact may use, and be instructed to use, the bad character or disposition evidence in assessing the credibility of the accused as a witness in the proceedings")
R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, per Cory J, at pp. 336-37
R v Cameron, 1995 CanLII 1283 (ON CA), 96 CCC (3d) 346, per Galligan JA, at p. 354
R v Teresinski, 1992 CanLII 12816 (ON CA), 70 CCC (3d) 268, at p. 278, leave to appeal refused, (1992) 73 C.C.C. (3d) vi (S.C.C.)
R v Hogan, 1982 CanLII 3820 (ON CA), 2 CCC (3d) 557, per Martin JA, at pp. 564-65, leave to appeal refused, (1983) 51 N.R. 154 (S.C.C.)
↑ Sheriffe, supra, at para 70

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]

↑ R v Morris, 1978 CanLII 168 (SCC), [1979] 1 SCR 405, per Pratte J
↑ R v McFadden, 1981 CanLII 494 (BC CA), 65 CCC (2d) 9, per Hutcheon JA

Relevant and Probative

See also: Relevance and Materiality

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.^[1] This includes any evidence that is necessary for the Crown's case or simply gives background.^[2]

However, in all cases the probative value must still outweigh the prejudicial effect.^[3]

Importance of Context

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 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.^[6]

Spree

Evidence of past acts during a crime spree may provide prejudicial effect but is considered necessary to establish the context of the offence.^[7]

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."^[8] 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.^[9]

↑ R v Sand, 2003 MBQB 76 (CanLII), 1 WWR 651, per Menzies J, 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 LWG, (1996), 49 C. R. (4th) 178(*no CanLII links) , at para 15 R v Tanner, 1995 CanLII 90 (SCC), [1995] 2 SCR 379, per curiam - adopting the dissent from the ONCA
↑ Sand, supra, at para 10
↑ Sand, supra, at para 10
↑ R v Ma, 1978 CanLII 2438 (ON CA), 44 CCC (2d) 511 (ONCA), per Lacouriere JA, at p. 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.")
↑ R v Cardinal, 1998 ABCA 50 (CanLII), 168 WAC 30, per curiam, at para 6 - allowed to explain "how" and "why" the accused was able to commit the offence
↑ R v Bonisteel, 2008 BCCA 344 (CanLII), 236 CCC (3d) 170, per Levine JA
↑ Cardinal, ibid., at para 6
↑ R v Mullins, 2019 ONCA 890 (CanLII), 383 CCC (3d) 16, per Strathy CJ, at para 23
↑ Mullins, ibid., at para 23
R v P(NA), 2002 CanLII 22359 (ON CA), 171 CCC (3d) 70, per Doherty JA, at para 34

Motive

See also: Intention

Proof of motive can constitute a form of bad character evidence and is not presumptively admissible but can be admitted in exceptional circumstances.^[1]

The judge must be satisfied that the probative value outweighs the prejudicial effect.^[2]

The value of the motive will depend on how speculative it is.^[3] Motive evidence that gives "insight into the background and relationship with the victim" is considered highly probative and is likely admissible.^[4]

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.^[5]

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.^[6]

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.^[7]

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."^[8]

The accused's level of poverty alone is not sufficient to support an inference of motive to commute an act.^[9]

↑ R v Johnson, 2010 ONCA 646 (CanLII), 262 CCC (3d) 404, per Rouleau JA
R v Bos, 2016 ONCA 443 (CanLII), 131 OR (3d) 755, per Tulloch JA, at para 74
R v Camara, 2021 ONCA 79 (CanLII), 400 CCC (3d) 490, per Watt JA, at para 51 ("Evidence of bad character may be exceptionally admitted where relevant to establish motive or animus, state of mind (such as fear on the part of a victim), narrative, or to provide context for other events")
↑ Johnson, supra
Bos, supra
↑ Johnson, supra
Bos, supra, at para 74 ("...discreditable conduct evidence that is adduced to advance a speculative theory of motive ought to be excluded.")
↑ Johnson, supra, at para 101
Bos, supra, at para 74
↑ R v Plomp v The Queen (1963) 110 CLR 234 (H.C.)(*no CanLII links) , at pp. 243 and 249-50
R v Griffin, 2009 SCC 28 (CanLII), [2009] 2 SCR 42, per Charron J, at paras 59 to 60
R v Candir, 2009 ONCA 915 (CanLII), 250 CCC (3d) 139, per Watt JA, at para 51
↑ Similar Fact Evidence
e.g. R v Kayaitok, 2017 NUCA 1 (CanLII), per curiam, at paras 12 to 16
↑ R v M(W), 1996 CanLII 1214 (ON CA), 112 CCC (3d) 117, per Catzman and LaBrosse JJA, at pp. 123-24, aff’d 1998 CanLII 831 (SCC), [1998] 1 SCR 977.
↑ R v JAH, 2012 NSCA 121 (CanLII), NSJ No 644, per Bryson JA, at para 11
↑ R v Mensah, 2003 CanLII 57419 (ON CA), 9 CR (6th) 339, per Simmons JA
R v Phillips, 2008 ONCA 726 (CanLII), 242 OAC 63, per MacPherson JA, at para 51

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."^[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]

↑ R v DSF, 1999 CanLII 3704 (ON CA), 132 CCC (3d) 97, per O'Connor JA
R v PS, 2007 ONCA 299 (CanLII), 211 CCC (3d) 45, per Goudge JA
↑ R v DP, 2009 CanLII 33056 (ON SC), per Boswell J, at para 28
↑ R v SB, [1996] OJ NO 1187 (Gen. Div.)(*no CanLII links) , at para 49
R v Sand, 2003 MBQB 76 (CanLII), [2003] MJ No 150, per Menzies J
↑ SB, supra, at para 45
↑ e.g. see R v Sand, 2003 MBQB 76 (CanLII), 1 WWR 651, per Menzies J, at para 12
↑ R v Batte, 2000 CanLII 5750 (ON CA), 145 CCC (3d) 449, per Rosenberg JA
↑ R v Moo, 2009 ONCA 645 (CanLII), 247 CCC (3d) 34, per Watt JA
See also SB, supra
R v Peterffy, 2000 BCCA 132 (CanLII), 30 CR (5th) 297, per Cumming JA
R v Misir, 2001 BCCA 202 (CanLII), 153 CCC (3d) 70, per Proudfoot JA, at para 18

Other Examples

Gang Association

Evidence of an accused gang affiliation or membership is generally bad character evidence.^[1] Any evidence of unrelated criminal activity is considered "particularly dangerous."^[2]

This type of gang-related evidence creates prejudice by inviting an inference that the accused is likely to have committed the offence.^[3] It also may also "insinuate that the accused embraces a positive attitude towards the criminal lifestyle."^[4]

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."^[5]

↑ R v Cook, 2020 ONCA 731 (CanLII), 153 OR (3d) 65, per Trotter JA, at para 40
R v Phan, 2020 ONCA 298 (CanLII), 387 CCC (3d) 383, per Strathy CJ, at para 90
↑ Cook, ibid., at para 40
R v Riley, 2017 ONCA 650 (CanLII), 351 CCC (3d) 223, per curiam, at para 21
↑ Cook, supra, at para 40
↑ Cook, supra, at para 40
↑ Phan, supra, at para 91

Joint Trials

In a joint trial, an accused is permitted to adduce prejudicial evidence of bad character relating to a co-accused.^[1]

The Crown can not use that type of bad character evidence to support its case in terms of establishing facts or attacking credibility.^[2]

The risk of prejudice is not different simply because it was adduced by a co-accused rather than the Crown.^[3]

It is necessary that there be a "sound evidentiary foundation" before a co-accused can introduce bad character evidence.^[4]

The judge must "balance" the fair trial rights of both accused.^[5]

Jury Trial

In a jury trial, the judge must give clearly defined limiting instructions on what use the evidence may have.^[6]

The instructions must include: ^[7]

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

↑ R v Sheriffe, 2015 ONCA 880 (CanLII), 333 CCC (3d) 330, per curiam, at para 65
R v Suzack, 2000 CanLII 5630 (ON CA), 141 CCC (3d) 449, per Doherty JA, at para 111
R v Pollock, 2004 CanLII 16082 (ON CA), 187 CCC (3d) 213, per Rosenberg JA, at para 108, leave to appeal refused, [2004] S.C.C.A. No. 405
R v Earhart, 2010 ONCA 874 (CanLII), 272 CCC (3d) 475, per Epstein JA, at para 73, leave to appeal refused, [2011] S.C.C.A. No. 397(complete citation pending)
↑ Sheriffe, supra at para 68
R v Diu, 2000 CanLII 4535 (ON CA), 144 CCC (3d) 481, at paras 142, 144-46
Suzack, supra, at paras 97, 127
R v Akins, 2002 CanLII 44926 (ON CA), 164 CCC (3d) 289, per Cronk JA, at para 20
↑ Sheriffe, supra, at para 66
Pollock, supra at para 105
↑ Sheriffe, supra at para 66
Pollock, supra, at para. 106
Earhart, supra, at para. 75
↑ Sheriffe, supra at para 66
Suzack, at para. 111
Pollock, supra, at para. 106 to 107
Diu, supra, at para. 137
↑ Sheriffe, supra at para 67
Pollock, at para. 109
Suzack, at paras. 114, 127
Diu, at para. 137
↑ Sheriffe, supra at para 67
Suzack, at para. 127
Pollock, at para. 109
Diu, at para. 139
R v Yumnu, 2010 ONCA 637 (CanLII), 260 CCC (3d) 421, per Watt JA, at paras 304 to 5, aff’d 2012 SCC 73, [2012 3 SCR 777]

Cut-Throat Defence

See also: Disreputable and Unsavoury Witnesses

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.