Character Evidence: Primary Materiality

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 49-102

49

CHAPTER 3

CHARACTER EVIDENCE:

PRIMARY MATERIALITY

1. inTRoduCTion

1.1) Generally

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

the personality, psychological state, attitude, or general capacity of an in-

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

Character may be established circumstantially — for example, by prov-

ing 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

prov ing h is cr imin al conv iction s, or i n other ways. C hara cter c an als o be

proved compendiously through statements of opinion (“In my view Joan

is dishonest”) or by proof of reputation (“Joan’s reputation in the com-

munity for honesty is poor”). “Character” 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. In-

deed, the rules of evidence are extremely guarded about the admission

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 directly in

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

true probative value.

1 “Character” in a bro ad sense is directly i n issue in proceedings such a s danger-

THE LAW OF EVIDENCE50

Because of the shifting importance of these considerations, char-

acter 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 conclusions about be-

haviour on a particular occasion. Its probative value often depends on

the proposition that persons tend to act consistently with their charac-

ter. We know from human experience, however, that this is only some-

times 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.

1.3) Character and Habit

“Character” evidence rules are concerned with drawing inferences

based on the kind of person the relevant individual is. Those rules are

therefore disinterested in activities that do not lead to type-casting. It

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 discuss ion of secondarily materi al character evidence se e chapter 10, sec-

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

and Your Own Witnes s.”

Character Ev idence: Primary Mat eriality51

is therefore important in applying these rules to distinguish between

“character” and “habit.” A habit, being the tendency of a person to en-

gage repeatedly in a particular kind of conduct, may or may not ref‌lect

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

character evidence rules do not apply, and the admission of evidence

about that habit should turn solely on its relevance and on the applica-

tion of general exclusionary considerations. Where, however, a habit

can colour the impression held by others of the kind of person the

subject is the character evidence rules should determine admissibility.

Character evidence rules should therefore govern the admission of the

accused person’s habit of carrying a gun. By contrast, they should not

apply to evidence that the accused was in the habit of smoking a par-

ticular 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 pro-

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

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

rules do not apply. To be clear, 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

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 prefer-

ence. As society becomes more liberal in its attitudes, proof of sexual

preference is likely to fall outside of the bad character evidence rule,

just as evidence of marital inf‌idelity after separation now has.6 By the

same token the “good character” evidence rules apply solely where the

evidence, by its nature, attracts favourable judgments about the kind

of person the subject is. Proof that a person is never late is not good

character evidence, but a history of philanthropy would be.

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