14. Good Character Evidence and Crown Rebuttal Evidence

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University
Pages:89-92
 
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Page 89

Where the accused places his character in issue in one of the permissible fashions, the Crown may call evidence tending to show that the accused is not of good character. This "evidence may be used to refute the assertion of good character and on the issue of the accused’s credibility [as a witness], but may not be used as a basis for determining guilt or innocence."186A jury must be instructed to this effect. Still, the risk that this bad character evidence will be applied prejudicially is obvious. Just as the defence is limited in the techniques it can employ, so too is the Crown.

14. 1) Cross-examination

The Crown can cross-examine the accused, or the witness who has provided the good character evidence, in a fashion that suggests that the accused does not possess the good character that is claimed. In R. v. O.(D.), a sexual abuse case involving his stepdaughter, the accused claimed that he was a good parent. This enabled the Crown to cross-examine him about whether he took proper care of his son, about his lack of interest in the whereabouts of his own daughter, and that he had allowed his stepdaughter to move back in with her mother even though he knew the mother was not looking after her.187The cross-examination of reputation witnesses is particularly dangerous for the accused. Since reputation is the product of what is said about another, it is, by its very nature, hearsay information. Hearsay can therefore be used to rebut it. In particular, the reputation witness

Page 90

can be asked whether he has heard rumours involving the accused, ostensibly to test his familiarity with the reputation of the accused or his judgment about the quality of that reputation.188

14. 2) Rebuttal Reputation Evidence

The Crown can call witnesses to suggest that the reputation of the accused for the relevant character is in fact bad.189

14. 3) Section 666 of the Criminal Code

This provision allows the previous convictions of the accused to be proved whenever he puts his good character in issue. Even subsequent convictions can be established provided the conduct was close enough in time to reflect on the relevant disposition.190Since the accused has put his character...

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