Character Evidence: Primary Materiality

• Author: David M. Paciocco/Lee Stuesser
• Pages: 48-102

Chapter 3

CHAR ACTER EVIDENCE:

PRIMARY MATERIALITY

1. INtrODUCtION

1.1) Generally

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

the persona lity, psychological state, attitude, or general capacit y of an

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

forms. Character may be established circumstant ially — for example,

by proving the part icular acts of a person on other occa sions. This can

be done through the te stimony 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. Char-

acter can also be proved compendiously through statements of opin-

ion (“In my view Joan is di shonest”) or by proof of reputation (“Joan’s

reputation in the community for honesty i s poor”). “Character” in it s

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. In-

deed, 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 cha racter of a person is not a matter directly in

48

Character Ev idence: Primary Mat eriality 49

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

true probative value.

Because of the shifting importance of these considerations, char-

acter evidence r ules var y depending on whether the evidence is being

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

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

evidence is being adduced on a prim arily mater ial issue (such as what

happened) or a secondar ily material issue (such as to ch allenge the

credibility of a witness). In criminal cases, the rules va ry 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 t he sen se t hat 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 controversi al because, by

its ver y n ature, it is general i nformation 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 i s only sometimes true. The fact that there is an in-

creased tendency for a person to act in a pa rticular way doe s 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 generaliz ations involved in

character typing tend to be pejorative and judgmental. The spectacle of

attacking a per son’s character is therefore di stasteful. More import ant,

it presents the ri sk of prejudice and opens general issues that may dis-

tract the trial from the material issues. There are therefore a number of

rules preventing or controlling the ad mission of this k ind of evidence.

1.3) Character and Habit

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

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

1 “Char acter” in a broad sense is dir ectly in issue in proceed ings such as danger-

ous offender applicat ions, in inquiries into f‌it ness to stand tria l, in s. 16 mental

disorder defence s, or in defamation suits.

2 For discussion of secondar ily material chara cter evidence see chapter 10, sec-

tion 6.5, “The Collateral Fact s Rule,” and chapte r 11, “Secondar y Materiality

and Your Own Witnes s.”

THE LAW OF EVIDENCE50

edly in a part icular kind of conduct, may or may not ref‌lect advers ely on

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

ter ev idence rul es do not apply, and the admi ssion of evi dence about t hat

hab it shoul d tur n solel y on its releva nce an d on the applic ation of gener al

exclusionary considerations. Where, however, a habit is suff‌iciently dis-

creditable that it may prejudice the trier of fact against the person with

that habit, the character ev idence rules should deter mine adm issibility.

Thus, e vidence that the accused was in t he habit of c arry ing a conc ealed,

illegal weapon should be inadmissible if called by the Crown unless it

conforms to the character evidence rule dealing with “similar fact evi-

dence.” By contrast, the similar fact ev idence rule does not apply to ev i-

dence that the accused was in the habit of smoking a particula r brand of

cigarette that was found at the scene of the crime.

For this reason, i n R. v. B.(L.) the O ntario Court of Appeal r uled

that where the Crown seeks to lead evidence about the pract ices or

propensities of the accused, it is essential to ask whether “the proposed

evidence [is] d iscreditable to the accus ed?”3 If not, t he cha racter ev i-

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

reveal crim inal conduct to be discredit able. Discreditable ev idence in-

cludes 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.4 It even extends beyond this to include proof

of a stigmatizing condition such as mental illness5 or sexual preference.

As society becomes more libera l in its attitudes, proof of sexual prefer-

ence is likely to fall outside of the bad character evidence r ule, just as

evidence of marital inf‌idelity after separation now has.6

2. DISCreDItaBLe CONDUCt eVIDeNCe

CaLLeD BY the prOSeCUtION IN a

CrIMINaL CaSe

[Evidence that the accused has engaged in discreditable or criminal

acts, or is otherwise of a discreditable character] is presumptively

inadmissible. The onus is on the prosecution to satisf y the trial

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

ron suggests t hat we should be referring to “evid ence of discreditable conduct”

rather tha n to “similar fact evidenc e.”

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

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

6 R. v. Walizadah (2007), 223 C.C.C. (3d) 28 at paras. 19–23 (Ont. C. A.).