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

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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 personality, psychological state, attitude, or general capacit y 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 par ticular act s of a person on other occasions. This can b e done

through the testimony of witne sses to those events, t hrough 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 i n t he 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 p erson i s not a matter directly in

issue in a proceeding,1 there is often in security 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 i mportance of these considerations, ch ar-

acter evidence rules vary depending on whether the ev idence 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 primarily materi al issue (such as what

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

credibility of a w itness). In criminal c ases, the rules vary depending

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

chapter deals solely with character ev idence that is pri marily material,

in the sense th at it is being introduced a s circumstantia l ev idence to

assist in determining what happened.2

1.2) Character and Relevance

The relevance of character evidence is often controversial because, by

its ver y nature, it is general in formation about a person th at is being

presented for the pur poses of leading to specif‌ic conclusions about be-

haviour on a particular occ asion. 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 t hat there is an increased tendency for a person

to act in a particular way does not mean t hat he always acts that way,

nor does it necessar ily mean th at he acted that way on t he occasion in

question. Not only is the probative va lue of character evidence often

controversial, the generalizations involved i n character typing tend

to be pejorative and judgmental. The spectacle of att acking a person’s

character i s therefore distasteful. More import ant, it presents the risk

of prejudice and opens general is sues th at may distract the trial f rom

the material issues. There are therefore a number of rules preventing or

controlling the admis sion of this kind of evidence.

1.3) Character and Habit

“Character” evidence rules are concerned with d rawing inferences

based on the ki nd of person the relevant ind ividual is. Those r ules are

therefore disinterested in activities t hat do not lead to t ype-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 eriality 51

is therefore important in applying the se r ules to distinguish bet ween

“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 r ules do not apply, and the admission of ev idence

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

tion of general exclusionar y considerations. Where, however, a habit

can colour the impre ssion held by others of the kind of person the

subject is the character ev idence rules should determine admissibility.

Character evidence r ules should therefore govern the admission of the

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

apply to ev idence that the accused was i n the habit of smoking a par-

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

For this rea son, 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 accu sed 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 sexua l prefer-

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

preference is likely to fall outside of the bad character ev idence r ule,

just as evidence of m arital inf‌idelity after separation now ha s.6 By t he

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.).