11. Character Evidence Called by an Accused (Against a Co-accused)

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 83-84

Page 83

Subject to the discretion of the trial judge to exclude evidence where its prejudicial effect is greater than its probative value, an accused person may establish that, by reason of his character, a co-accused is the more likely perpetrator of the crime with which they are charged. In doing so, however, the accused will be taken to have put his own character in issue.

Jointly accused persons may attempt to deflect the blame to each other and, in doing so, may be allowed to adduce evidence about a relevant character trait of the other to suggest that he is the more likely perpetrator. This would include evidence that the Crown could not have called.¹⁵⁶It is even permissible for an accused person to rely upon the otherwise prohibited inference that the co-accused is, by reason of his character, the type of person to commit the offence.¹⁵⁷The sole fixed limitation is that an accused cannot try to establish the propensity of a co-accused by relying on acts for which the co-accused has been acquitted.¹⁵⁸Where an accused does call evidence suggesting that the co-accused is the kind of person to commit the offence that inference can be relied on by the accused in defending himself, but not by the Crown in proving the guilt of the co-accused. Nor can evidence of the co-accused’s character be used by the Crown on the issue of the coaccused’s credibility as a witness.¹⁵⁹In a jury trial, both the positive use to which the evidence can be put, and the limits on its use, must be explained to the jury.¹⁶⁰The right of an accused to make full answer and defence does not automatically trump the rights or interests of a co-accused.¹⁶¹The judge retains the discretion to exclude character evidence about a co-accused where its probative value to the case for the accused does not warrant the serious prejudice it will cause to the co-accused. In order to permit the judge to undertake this balancing, the accused should notify the judge of his intention to prove evidence demonstrating a co-accused’s

Page 84

bad character. The judge should ensure that there is a real evidentiary foundation in the case for the proof that is probative enough to "be legitimately and reasonably capable of assisting the [trier of fact] in arriving at a just verdict." The judge should also ensure that the risk of prejudice does not substantially outweigh that probative value on the basis that the evidence would "mislead the [trier of fact because it would be given too much...