Character Evidence: Primary Materiality

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 63-134

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CHAPTER 3

CHARACTER EVIDENCE:

PRIMARY MATERIALITY

1. INTRODUCTION

1.1) “Character Evidence” Introduced

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

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

individual to engage in particular behaviour. Whether the character

being proved is good or bad, this kind of evidence can lead to primar-

ily material inferences about how likely it is that someone behaved in

the fashion alleged, or to secondarily material inferences about how

trustworthy the evidence of a witness might be.1 Character evidence

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 can be done through the testimony

of witnesses to those events, through admissions by the person whose

character is being explored, through certificates proving that individ-

ual’s criminal convictions, or in other ways. This chapter discusses

the use of character evidence that is offered to help directly establish

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 primarily material issue of what happened, rather than to show or

challenge the credibility of the accused or other persons as witnesses.

1.2) Character and Concerns About Relevance and

Prejudice

Where the character of a person is not a matter directly in issue in

a proceeding,2 there is often insecurity about the relevance and true

probative value of character evidence. This is because, 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 particular 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 generalizations involved in character typing tend to

be pejorative and judgmental. The spectacle of attacking a person’s

character is therefore distasteful. More importantly, when character is

proved, it presents the risk of prejudice. The primary concern is with

“moral prejudice,” which in this context refers to the risk that individ-

uals will be 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 the risk of confusion, and adding to the expense of

the litigation.3

1.3) Character and Mere Habit

Character evidence rules are concerned with drawing inferences based

on the kind of person the individual in question is. It is therefore

important in applying these rules to distinguish between “character”

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

repeatedly in a particular 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 eriality65

person likely acted on the occasion in question4 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 evidence rules do

not apply, and the admission of evidence about that habit 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, the character evidence

rules should determine admissibility. Character evidence rules should

therefore govern the admission of the accused person’s habit of, for

example, donating money or carrying a gun.

1.4) Character Rules Vary with Context

Because the intensity of the risk of prejudice varies depending on

whether the evidence is being presented in a criminal or a civil case,

and whether it relates to a party or a non-party, different character evi-

dence rules govern. In criminal cases, the rules also vary depending

on whether it is the accused or the Crown calling the evidence. In

both criminal and civil cases, the character evidence rules vary as

well, depending on whether the character evidence is being adduced

on a primarily material issue (that is, what happened) or a secondarily

material issue (that is, to challenge the credibility of a witness).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 testifies, then the trier of fact will be free to use that

already-admitted character evidence in assessing that person’s cred-

ibility.6 Yet the converse is not true. Character ev idence admitted about

the credibility of the witness cannot be used to draw inferences about

what happened unless that 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.

4 R v Vant, 2015 ONCA 481 at para 67 [Vant].

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.