Canadian Criminal Evidence/Character

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Character evidence is evidence that invites the trier of fact to make an inference that the person is of a certain "type", thus inferring that the person acted consistently with that type of character. Character evidence can often become prejudicial to the accused and so must be taken with care.

Contents

[edit] Character of Accused

[edit] Good Character evidence

The defence may adduce good character of the accused. However, where introduced section 666 applies:

Evidence of character
666. Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.

R.S., c. C-34, s. 593.[8]

Section 666 permits the Crown to adduce evidence of bad character to rebut the good character evidence.

[edit] Bad Character evidence

The crown is prohibited from presenting any evidence of bad character of the accused.[1] The reason behind this is that the trier-of-fact should not be influenced to believe the accused has bad character and so is more likely to have committed the offence.[2]

There are three exceptions to the rule against character evidence.[3]

  1. where the evidence is relevant to an issue in the case after balancing the probative value and prejudicial effect
  2. where the accused puts her character in issue
  3. where the evidence is adduced incidentally to proper crossexamination of the accused on her credibility[4]

Where bad character comes out in evidence during a jury trial, a judge should provide some limiting instructions on the use of such evidence.[5]

[edit] Motive

Motive is never necessary to be proven for an offence, however, evidence of motive may assist in proof of an accused’s participation in an offence and of the state of mind with which the offence was committed[6]

Where the defence presents evidence suggesting a third-party committed the offence and has a motive, the crown may call evidence reply evidence on the accused's disposition or propensity.[7]


[edit] Post-Offence Conduct

Post offence conduct is a form of circumstantial evidence. The utility depends on what inferences can be fairly drawn from the circumstances in its entirety. [8]

This inference is case-specific based on factors such as:[9]

  1. the nature of the conduct;
  2. the facts sought to be inferred from the conduct;
  3. the positions of the parties; and
  4. the totality of the evidence.

[edit] Character of witnesses (non-accused)

[edit] Similar Fact Evidence

When assessing the similarities of incidents in a similar fact evidence application, the court should consider:[10]

  1. the temporal proximity of the incidents;
  2. the physical or spatial proximity of the events;
  3. the similarity in detail between the various acts;
  4. the number of putatively similar acts;
  5. the circumstances surrounding the incidents at issue;
  6. distinctive features unifying the incidents; and
  7. the occurrence and nature of any intervening events.

[edit] References

  1. ↑ R. v. Handy, [2002] 2 S.C.R. 908 at para. 31
  2. ↑ R. v. Batte (2000), 49 O.R. (3d) 321 ( C.A. ), at para. 100 [1]
  3. ↑ R. v. G.(S.G.), [1997] 2 S.C.R. 716, at para 63
  4. ↑ See: Lucas v. The Queen, [1963] 1 C.C.C. 1 (S.C.C.) and
    R. v. Chambers, [1990] 2 S.C.R. 1293 [2]
  5. ↑ R. v. Spied, (1985), 20 C.C.C. (3d) 534 (Ont. C.A.),
    R. v. G. (S.G.), [1997] 2 S.C.R. 716 [3]
    R. v. Reierson, [2010] B.C.J. No. 1619 (B.C.C.A.)
    R. v. Grandinetti, 2003 ABCA 307 [4] , aff’d 2005 SCC 5 (CanLII), [2005] 1 S.C.R. 27
  6. ↑ Plomp v. The Queen (1963) 110 C.L.R. 234 (H.C.), at pp. 243 and 249-50;
    R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-60;
    R. v. Candir (2009), 250 C.C.C. (3d) 139 (Ont. C.A.), at para. 51.
  7. ↑ R. v. M.(W.) 1996 CanLII 1214 (ON C.A.), (1996), 112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-24, aff’d 1998 CanLII 831 (S.C.C.), [1998] 1 S.C.R. 977.
  8. ↑ R. v. Teske [2005] O.J. No. 3759(C.A.) at para. 85
  9. ↑ R. v. Figueroa (2008), 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 33 and 35 [5]
  10. ↑ e.g., R. v. Arp, [1998] 3 SCR 339 [6] at para. 50;
    R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908 [7] at para. 82;
    Watt’s Manual of Criminal Evidence, Thomson Reuters, 2010, at p. 503

← Opinion · Credibility →

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