Character Evidence: Primary Materiality
| Author | David M. Paciocco/Lee Stuesser/Palma Paciocco |
| Pages | 63-134 |
63
CHA PTER 3
CHAR ACTER EVIDENCE:
PRIM ARY M ATERIALIT Y
1. INTRODUCTION
1.1) “Character Evidence” Introduced
“Character evidence” is any proof that is presented i n order to establish
the personality, psychological state, attitude, or general capacit y of an
individual to engage in particular behaviour. Whether the character
being proved is good or bad, this ki nd of evidence can lead to primar-
ily material in ferences about how likely it is that someone behaved in
the fashion alleged, or to secondarily material inferences about how
trustworthy t he evidence of a witness might be.1 Character ev idence
can take a number of forms. Character can be proved directly through
statements of opinion (“In my view, Joan is dishonest.”) or by proof of
reputation (“Joan’s reputation in the community for honesty is good.”).
“Character” in its broader sense can even be proved through expert
opinion (“Simon is a sexual psychopath.”). Character can also be estab-
lished circumst antially — for example, by proving the part icular acts of
a person on other occasions. This ca n be done through the testimony
of witnesses to t hose events, through admissions by the person whose
character is being explored, through certificates provi ng that individ-
ual’s criminal convictions, or in other ways. This chapter discusses
the use of character evidence that is offered to help directly establi sh
1 Primar y and secondary mater iality are discu ssed in Chapter 2 at Section s 2.2
and 2.3.
THE LAW OF EVIDENCE64
the primar ily material issue of what happened, rather than to show or
challenge the credibilit y of the accused or other persons as w itnesses.
1.2) Character and Concerns About Relevance and
Prejudice
Where the character of a person is not a matter d irectly in issue in
a proceeding,2 there is often insecurity about the relevance and true
probative value of character evidence. This is bec ause, by its very
nature, character evidence is general information about a person that
is being presented for the purpose of leading to specific conclusions
about behaviour on a particula r occasion. Its probative 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 a person has a tendency to act a
particular way does not mean that they always act that way, nor does it
necessarily mean that they acted that way on the occasion in question.
Not only is the probative value of character evidence often uncer-
tain, but also the general izations involved in character ty ping tend to
be pejorative and judgmental. The spectacle of attacki ng a person’s
character is therefore dist asteful. More importantly, when character is
proved, it presents the risk of prejudice. The primar y concern is with
“moral prejudice,” which in this context refers to the risk that ind ivid-
uals will b e judged based on their character or on stereotypes about
human conduct, rather than on the rat ional strength of all t he evidence.
“Reasoning prejudice” is also a concern a nd encompasses several h arms,
including distracting from the real issues, complicating the case and
thereby increasing t he risk of confusion, and adding to the ex pense of
the litigation.3
1.3) Character and Mere Habit
Character evidence rule s are concerned with drawing inferences based
on the kind of person the indiv idual in question is. It is therefore
important in applying these rules to disti nguish between “character”
and “habit.” A habit, being the regular tendency of a person to engage
repeatedly in a part icular kind of conduct, can be evidence of how a
2 For example, “charact er” in a broad sense is direc tly in issue in proceedin gs
such as dangerou s offender applications, inquir ies into fitness to sta nd trial,
section 16 mental di sorder defences, and defamation s uits.
3 See Chapter 2, Sect ion 5.3, “The Concept of ‘Prejudice’.”
Character Ev idence: Primary Mat eriality 65
person likely acted on the occasion in que stion4 without reflecting on
that person’s character. Where evidence of habit does not reflect on a
person’s character — such as the habit of smoking a particular brand of
cigarettes — the rationales underlying the character ev idence rules do
not apply, and the admission of evidence about that h abit should turn
solely on its relevance and on the application of general exclusionary
considerations. Where, however, a habit can colour the impression held
by others of the kind of person the subject is, t he character evidence
rules should determine admi ssibility. Character evidence rules should
therefore govern the admission of the accused person’s habit of, for
example, donating money or carr ying a gun.
1.4) Character Rules Vary with Context
Because the intensit y of the risk of prejudice varies depending on
whether the evidence is being presented in a criminal or a civ il case,
and whether it relates to a party or a non-part y, different character evi-
dence rules govern. In crim inal cases, the rules also var y depending
on whether it is the accused or the Crown calling the evidence. In
both crimin al and civil case s, the character evidence rule s vary as
well, depending on whether the character ev idence is being adduced
on a primarily m aterial issue (that is, what happened) or a secondarily
material issue (that is, to challenge the credibility of a witnes s).5
It is important to appreciate that, if character evidence is admit-
ted as proof of what happened, and if the person whose character has
been proved also testif ies, then the trier of fact will be free to use that
already-admitted char acter evidence in assessi ng that person’s cred-
ibility.6 Yet the converse is not true. Character ev idence admitted about
the credibility of the w itness cannot be used to d raw inferences about
what happened unless th at evidence would also have been admissible
under the rules that govern that purpose. The reason is that the law
tends to be more restrictive w ith primarily material ch aracter evidence.
5 This chapter deal s solely with character ev idence that is presented a s being
primar ily material, in the se nse that it is being intr oduced as circumstant ial
evidence to as sist in determining wh at happened. For a discussion of se condar-
ily materi al character evidence, see C hapter 10, Section 5, “The Collateral Facts
Rule,” and Chapter 11, “Secondary M ateriality and Your Own Wit ness.”
6 In R v Dorfer, 2010 BCCA 440 at paras 39– 40, aff’d [2011] 3 SCR 366 [Dorfer],
for example, the cour t recognized that, where t he accused led evidence about
his own di screditable conduct to explai n his actions, this ev idence could also
be used to judge hi s credibility as a witn ess.
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