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Canadian Criminal Evidence/Character/Character of Accused

< Canadian Criminal Evidence | Character

General Principles

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Character evidence of the accused is any evidence that establishes the accused conduct or reputation outside of the period of the alleged offence for the inference that during the time of the alleged offence the accused had acted in conformity with that conduct or reputation. Character is established by :

  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.

The rules on leading character can be ignored in limited circumstances such as where it simply shows context or is part of a narrative.[1]

  1. ↑ E.g. R v Lamirande (2002), 164 CCC 3d 299 (MBCA)
    R. v. Bernardo (1995), 42 CR (4th) 85 (Ont Gen Div)

Good Character Evidence

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The defence may adduce good character of the accused. However, where introduced section 666 applies:

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.[1]


Section 666 permits the Crown to adduce evidence of bad character to rebut the good character evidence.

Bad Character Evidence

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The Crown is prohibited from adducing evidence of extrinsic misconduct of the accused; what is often called "bad character" evidence.[1] The 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]
  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]
  3. the tier 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]

There are three exceptions to the rule against character evidence.[5]

  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[6]

Where bad character comes out in evidence during a jury trial, a judge should provide some limiting instructions on the use of such evidence.[7]

  1. ↑ R. v. Handy, [2002] 2 S.C.R. 908 at para. 31
  2. ↑ R. v. Batte (2000), 49 O.R. (3d) 321 (CA) at para 100
  3. ↑ R. v. M.T., 2012 ONCA 511 at 81
  4. ↑ R v MT 2012 ONCA 511 at 81
    R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128
  5. ↑ R. v. G.(S.G.), [1997] 2 S.C.R. 716, at para 63
  6. ↑ See: Lucas v. The Queen, [1963] 1 C.C.C. 1 (S.C.C.) and
    R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 SCR 716
    R. v. Chambers, [1990] 2 S.C.R. 1293 1990 CanLII 47
  7. ↑ R. v. Spied, (1985), 20 C.C.C. (3d) 534 (Ont. C.A.),
    R. v. G. (S.G.), [1997] 2 S.C.R. 716 1997 CanLII 311
    R. v. Reierson, [2010] B.C.J. No. 1619 (B.C.C.A.)
    R. v. Grandinetti, 2003 ABCA 307 , aff’d 2005 SCC 5, [2005] 1 S.C.R. 27

Relevant and Probative

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Motive

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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[1]

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.[2]

  1. ↑ Plomp v. The Queen (1963) 110 C.L.R. 234 (H.C.), at pp. 243 and 249-50;
    R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-60;
    R. v. Candir (2009), 250 C.C.C. (3d) 139 (Ont. C.A.), at para. 51.
  2. ↑ R. v. M.(W.) 1996 CanLII 1214 (ON C.A.), (1996), 112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-24, aff’d 1998 CanLII 831 (S.C.C.), [1998] 1 S.C.R. 977.

Extrinsic Misconduct

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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. [1]

  1. ↑ R. v. Moo 2009 ONCA 645
    See also S.B. [1996] O.J. No. 1187 (Gen. Div.)
    R. v. Peterffy, 2000 BCCA 132 (CanLII)
    R. v. Misir, 2001 BCCA 202 (CanLII) at para. 18

Cut-Throat Defence

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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: Canadian Criminal Evidence/Character/Alternative Suspect Evidence

When Character is put in issue

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As mentioned above, 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 mentions his "sexual morality" by affirming his commitment to his partner in a murder trial of the partner constitutes putting character at issue.[1]

  1. ↑ R. v. McFadden, (1981) 65 CCC 2d 9 (BCCA)
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