Character Evidence

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 249-302

CHAPTER 7

CHARACTER EVIDENCE

I. Introduction ..................................................... 

II. Character of Non-Accused Witnesses ............................... 

A. Overview..................................................... 

B. Good Character of a Non-Accused Witness: The Rule Against

OathHelping ................................................. 

C. Bad Character of Non-Accused Persons.......................... 

. Overview .................................................. 

. Reputation Evidence as to Opposing Witness’s Credibility ........ 

. Disposition of the Complainant or Deceased for Violence........ 

. Disposition of Alternate (Third-Party) Suspects ................. 

(A) Known Alternate Suspects................................ 

(B) Unknown Alternate Suspects ............................. 

. Bad Character of Co-Accused................................ 

. Criminal Records of Non-Accused Witnesses................... 

III. Good Character of the Accused .................................... 

A. Overview..................................................... 

B. Evidence of the Accused’s General Reputation .................... 

C. Psychiatric Evidence of Disposition .............................. 

D. Good Character Evidence Led Through the Testimony of

theAccused .................................................. 

IV. Putting the Accused’s Character in Issue ............................. 

A. When Is the Accused Deemed to Have Put Their Characterin Issue? ... 

B. Crown’s Entitlement to Rebuttal When Character Is PutinIssue ..... 

V. Prior Criminal Record of the Accused ................................ 

VI. Prior Discreditable Conduct of the Accused, Including Similar

Fact Evidence .................................................... 

A. Overview..................................................... 

B. A Note About Terminology ..................................... 

C. Scope of Application and Manner of Proof ........................ 

D. Overview of the Test for Admitting Similar Fact Evidence............ 

. Probative Value............................................. 

(A) The Issue in Question.................................... 

249

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I. INTRODUCTION

Character evidence can be broad ly defined as evidence that (1) does not directly per tain

to the subject matter of the charge and (2) cas ts light on the subject’s personal qualitie s

by way of their conduct or reputation. D ifferent evidentiary rules apply dep ending on

whose character is at issue (the accused ’s or someone else’s), whether the evidence

reflects positively or negative ly on that person, and what the tendering part y wants to

use it for. Some of these rules are precisely calibrated to the f air trial interests at stake;

others appear more arbitrar y. As Rosenberg JA can didly acknowledged in Clarke, “The

rules of evidence respecting th e admissibility of character evidence are not always logi-

cal or founded in good pol icy.”1

“Character” is a capacious term that ca n encompass virtually any information about

a person. As used in the l aw of evidence, however, it has two main (often overlapping)

uses:

1. dem onstrating how a person is likely to have acted on an occasion in question;

2. demonstrating whether o r not the accused is likely to be telling the truth as a

witness.

As Wigmore pointed out, “character,” as used in the law of evide nce, is more accurately

described as “dispo sition.”2 More precisely: character is a disposition to behave in a par ticu-

lar way relevant to the allegation before the cour t or a disposition to lie (or tell the truth).

The presence of so many variables m akes it difficult to generalize about how the

law treats what we compendiously de scribe as character evidence. But some broad

observations can noneth eless be made. On the one hand, character evid ence can be

powerfully probative. People tend to be pred ictable. In our everyday lives, we assume

that how people acted in the past is a rea sonably good guide to how they are likely

to act in the future. There is no reason why, at a factual leve l, the same should not be

true when determining what happ ened on an occasion forming the subject matter of a

criminal charge. Knowing abo ut the character of the protagonists can help determi ne

what happened and why.

1 Rv Clarke, 1998 CanLI I 14604, 129 CCC (3d) 1 at para 1 (Ont C A).

2 Wigmore on Evidence, as discussed by Wood JA i n RvSims, 1994 Ca nLII 1298, 87 CCC (3d) 402 at pa ra 69

(BCCA).

(B) The Question of Collusion ............................... 

(C) Connecting Factors ..................................... 

(D) Strength of the Evidence That the Similar Acts Actually

Occurred .............................................. 

. Prejudicial Effect ........................................... 

E. Prior Acquittals ................................................ 

F. Jury Instructions .............................................. 

G. Appellate Review .............................................. 

250 MODERN CRIMINAL EVIDENCE

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However, it is a fundamental principle of the crimina l law that we punish people only

for what they did, not for who they are. As o bserved by Binnie J in Handy, “Bad charac-

ter is not an offence known to the law.”3 Evidence that the accused is a “bad person” c an

therefore distort the trial process by prejud icing the trier of fact against the accused and

distracting attention from what is reall y at issue. This kind of evidence is presumptively

excluded not because it lacks probati ve value, but rather because of the law’s strong

policy against tainting th e adjudicative process in this manner.4

Principally for those reasons, chara cter evidence pertaining to the accused is regu-

lated more strictly than character evi dence pertaining to non-accused persons. With

respect to non-accused persons, chara cter evidence is subject to a set of sometimes

arcane rules about its scope an d manner of presentation, but the general tende ncy of

the law is to allow the admission of eviden ce undermining the character (and therefore

the credibility) of an oppone nt’s witness while excluding evidence whose only purpose

is to bolster the credibility of on e’s own witness. Exclusionary rules in this area tend to

be focused on pragmatic concerns rathe r than fundamental principles of fairness.

With respect to accused persons, the g eneral principle of law is exclusionary, subject

to tightly controlled exceptions. Evidence of the accused’s bad charac ter is not relevant

until and unless (1) the accused put s their own character in issue; or (2) the Crown, on

application, demonstr ates that the probative value of the ev idence exceeds its prejudi-

cial effect. Admissibil ity is most frequently litigated where the Crown applies to tende r

similar fact evidence—that is, evid ence of prior discreditable conduct intended to estab-

lish the accused’s specific propensity to act in a certain manne r. However, the Crown

may also wish to tender evidence of prio r discreditable conduct whose relevance does

not depend on any similarit y to the conduct charged—for example, evidence of motive

or animus. As long as the proffered evidence refle cts negatively on the accused’s char-

acter, the onus remains on the Crown to justify its a dmission.

II. CHARACTER OF NON-ACCUSED WITNESSES

A. OVERVIEW

Usually, the character of a non-accused witness is not directl y relevant to proof of the

accused’s guilt. However, the witness’s character may be relevant to credibilit y of their

testimony. As seen below, the circumstances in which a par ty is entitled to bolster the

credibility of its own witness throu gh good character evidence are very limited. This

general proscription is often referre d to as the rule against oath h elping.5

The law is more generous in allowin g attacks on a witness’s credibility than it is in

allowing attempts to bolster it.6 In o ur adversary system, challenges to the ch arac-

ter—and thereby the credibility—of opposing witnes ses are generally seen as advancing

the truth-seeking objective of the tri al. By contrast, attempts to demonstrate the good

character as one’s own witnesses are typically seen as improper diversions from the real

issue: the trustworthine ss of the evidence itself.

3 Rv Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 90 8 at para 72.

4 Rv McMillan, 1975 CanLII 43, 23 CCC (2d) 160 (Ont C A), aff’d [1977 ] 2 SCR 824.

5 Rv B(FF), [1993] 1 SCR 697 at 729.

6 Rv Tash, 2013 ONC A 380 at para 40.

Chapter 7 Character Evidence 251

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