15. The Character of Third Parties in Criminal Cases

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

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Where the character of persons other than the accused is relevant to a primarily material issue, it can be proved, subject to sections 276 and 277, which impose limits in the case of sexual offence complainants.

15. 1) Generally
15. 1 (a) Admissibility of a Third Party’s Character

Third parties, including complainants, are not being judged formally and are not at risk of losing their liberty. They are not the subject of state-based allegations. They do not, therefore, benefit from the presumption of innocence. Accordingly, they do not have the same degree of protection that accused persons have. Where their character is relevant on a primarily material issue, particularly when it can assist the accused in making full answer and defence, evidence about their character will generally be admissible.

For example, in self-defence cases where there is a foundation for suggesting that the deceased was the aggressor, it is relevant to the reasonableness of the accused’s actions that he was aware that the deceased had a reputation for violence. In such cases it is easier to believe that the accused feared bodily harm and therefore felt the need to use force in self-defence. Evidence about the reputation of the victim for violence is therefore admissible.197So too are specific acts of violence known to the accused, such as where the accused was the victim of that violence.198Proof that the victim has a violent disposition as demonstrated through specific acts of violence unknown to the accused is also relevant according to the theory that violent people are more likely to react violently than those who do not have a violent disposition.199Provided the evidence establishing the propensity for violence of the victim is strong enough, it is admissible even if it does not satisfy the similar

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fact evidence test. The accused may also call evidence of the victim’s reputation for violence, in order to support the inference that it was the victim who acted aggressively.200Although these principles developed in self-defence cases, evidence about the discreditable propensities of non-victims can be led where the accused defends himself on the basis that the act was committed by another person who had the opportunity to do so,201or when such evidence is otherwise relevant. For example, in R. v. Khan it was recognized that in an appropriate case, a past practice of racial profiling by police officers would be admissible.202Judges, of course, retain discretion to exclude evidence called by an accused person about the character of another, where the potential for prejudice to the Crown’s case substantially outweighs the probative value of the defence evidence.203Such discretion was used in the self-defence case of R. v. Pilon to exclude evidence of the deceased’s habit of carrying a gun because other evidence already showed this. The proof offered was also remote in time and could have raised collateral issues.204Because the evidence is called by the accused and does not involve a co-accused who is in jeopardy at the same trial, however, that discretion is to be exercised in a guarded fashion.

In Khan the trial judge evaluated whether to exercise that discretion by consulting the Handy factors that operate under the similar fact evidence rule before ultimately excluding testimony about a past act of alleged racial profiling by police officers. This is an appropriate way to structure the analysis so long as it is remembered that the rules differ in this important respect - unlike similar fact evidence called by the Crown, relevant third-party character evidence is prima facie admissible when called by the accused.

15. 1 (b) Rebuttal Evidence and the Character of the Accused

Accused persons who defend themselves by "pointing a finger at a third party [and] suggesting that that person has a propensity to commit the crime charged" will generally be taken to have put their own character in issue.205To be clear, the accused persons will not be taken to have

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put their character into issue simply by pointing the finger at another; the accused is apt to lose their bad character shield only if the accused attempts to cast blame on another by pointing to that other’s general propensity to commit the crime.206The same result can arise in a self-defence case where the accused leads evidence demonstrating the propensity of the deceased for violence in an effort to paint the deceased as the aggressor.207The thinking is that when it comes to determinations of who the responsible actor is, it would be misleading for the trier of fact to learn only about the character or capacity of the third party while being left in the dark about the character or capacity of the accused.208Not all judges agree. In R. v. Wilson, Wilson had claimed in his own defence that the deceased had threatened him with a gun on other occasions, and had done so on the evening she died. The Court held that Wilson was entitled to present evidence about the deceased "with impunity," and could not thereby be taken to have put his own character into issue.209That position is not entirely without merit. Even someone with criminal propensity can be a victim or be wrongfully charged; should they lose the protection of the bad character shield by attempting to rely on relevant evidence supporting their claim of innocence?

Instead of accepting that accused persons can lead such evidence with impunity, most courts handle the risks this strategy poses to accused...

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