Character Evidence: Primary Materiality

• Author: David M. Paciocco/Lee Stuesser
• Pages: 44-94

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1. INTRODUCTION

1.1) Generally

“Character evidence” is any proof that is presented in order to estab-

lish the personality, psychological state, attitude, or general capacity of

an individual to engage in particular behaviour. It can take a number

of forms. Character may be established circumstantially — for exam-

ple, by proving the particular acts of a person on other occasions. This

can be done through the testimony of witnesses to those events,

through admissions by the person whose character is being explored,

through certificates proving his criminal convictions, or in other ways.

Character can also be proved compendiously through statements of

opinion (“In my view Joan is dishonest”) or by proof of reputation

(“Joan’s reputation in the community for honesty is poor”). “Charac-

ter” in its broader sense can even be proved through expert opinion

(“Simon is a sexual psychopath”).

Not all of these kinds of evidence will be admissible in all cases.

Indeed, the rules of evidence are extremely guarded about the admis-

sion of character evidence. This kind of evidence often presents serious

risk of prejudice and can create distracting and time-consuming side

issues; moreover, where the character of a person is not a matter direct-

CHARACTER EVIDENCE:

PRIMARY MATERIALITY

chapter 3

ly in issue in a proceeding,1there is often insecurity about its relevance

and true probative value.

Because of the shifting importance of these considerations, charac-

ter evidence rules vary depending on whether the evidence is being

presented in a criminal or a civil case, or whether it relates to a party

or a non-party. They vary, as well, depending on whether the character

evidence is being adduced on a primarily material issue (such as what

happened) or a secondarily material issue (such as to challenge the

credibility of a witness). In criminal cases, the rules vary depending

upon whether it is the accused or the Crown calling the evidence. This

chapter deals solely with character evidence that is primarily material,

in the sense that it is being introduced as circumstantial evidence to

assist in determining what happened.2

1.2) Character and Relevance

The relevance of character evidence is often controversial because,

by its very nature, it is general information about a person that is being

presented for the purposes of leading to specific inferences. Its proba-

tive value often depends on the proposition that persons tend to act

consistently with their character. We know from human experience,

however, that this is only sometimes true. The fact that there is an

increased tendency for a person to act in a particular way does not

mean that he always acts that way, nor does it necessarily mean that he

acted that way on the occasion in question. Not only is the probative

value of character evidence often controversial, the generalizations

involved in character typing tend to be pejorative and judgmental. The

spectacle of attacking a person’s character is therefore distasteful. More

important, it presents the risk of prejudice and opens general issues

that may distract the trial from the material issues. There are therefore

a number of rules preventing or controlling the admission of this kind

of evidence.

Character Evidence: Primary Materiality 45

1 “Character” in a broad sense is directly in issue in proceedings such as danger-

ous offender applications, in inquiries into fitness to stand trial, in section 16

mental disorder defences, or in defamation suits.

2 For discussion of secondarily material character evidence see chapter 10, section

6.5, “The Collateral Facts Rule,” and chapter 11, “Secondary Materiality and

Your Own Witness.”

1.3) Character and Habit

It is important in applying these rules to distinguish between “character”

and “habit.” A habit, being the tendency of a person to engage repeated-

ly in a particular kind of conduct, may or may not reflect adversely on

one’s character. Where it does not, the rationales underlying the charac-

ter evidence rules do not apply, and the admission of evidence about that

habit should turn solely on its relevance and on the application of gen-

eral exclusionary considerations. Where, however, a habit is sufficiently

discreditable that it may prejudice the trier of fact against the person

with that habit, the character evidence rules should determine admissi-

bility. Thus, evidence that the accused was in the habit of carrying a con-

cealed, illegal weapon should be inadmissible if called by the Crown

unless it conforms to the character evidence rule dealing with “similar

fact evidence.” By contrast, the similar fact evidence rule does not apply

to evidence that the accused was in the habit of smoking a particular

brand of cigarette that was found at the scene of the crime.

For this reason, in R.v. B.(L.) the Ontario Court of Appeal ruled that

where the Crown seeks to lead evidence about the practices or propen-

sities of the accused, it is essential to ask whether “the proposed evi-

dence [is] discreditable to the accused?”3If not, the character evidence

rules do not apply. Evidence of practice or propensity need not reveal

criminal conduct to be discreditable. Discreditable evidence includes

any conduct or information about the accused that is morally objec-

tionable or apt to demonstrate that he or she has a contemptible or rep-

rehensible character.4It even extends beyond this to include proof of a

stigmatizing condition such as mental illness5or sexual preference.

2. DISCREDITABLE CONDUCT EVIDENCE

CALLED BY THE PROSECUTION IN A

CRIMINAL CASE

[Evidence that the accused has engaged in discreditable or crimi-

nal acts, or is otherwise of a discreditable character] is presump-

tively inadmissible. The onus is on the prosecution to satisfy the

46 The law of Evidence

3R.v. B.(L.) (1997), 9 C.R. (5th) 38 at 49 (Ont. C.A.). For this reason, Justice

Charron suggests that we should be referring to “evidence of discreditable con-

duct” rather than to “similar fact evidence.”

4R.v. Robertson (1987), 58 C.R. (3d) 28 at 46 (S.C.C.).

5R.v. Morin (1988), 66 C.R. (3d) 1 (S.C.C.).