Character evidence is any evidence that invites an inference that a person is a certain type of person and further, invites inference that they acted consistently with that character type
The more general the evidence is, the more likely it is to be considered character evidence.
E.g. to say someone cheats at cards, is violent, has previous convictions, is honest / truthful, is likely to have lied, etc.
Sometimes character evidence is referred to as evidence of disposition or of propensity
Distinguish from evidence of habit (i.e. did something in a regular way e.g. “Sue always arrived at work at 8:50am” or “Fred always wore a suit to church”) which can be admissible so long as doesn’t lead to prejudicial inferences.
The more the evidence conforms to evidence of specific reactions on a regular basis to a specific situation = more likely to be evidence of habit
Courts are generally more receptive evidence of habit as opposed to evidence of character. One way to try and slip character evidence into a trial is to frame it as evidence of habit.
Evidence of habit generally have a higher probative value and a lower potential for prejudice
However, to be admitted, evidence of habit must be sufficiently regular or uniform and the circumstances must be sufficiently similar
Courts are largely concerned with preventing the admission of evidence that is prejudicial, distracting or simply time-consuming.
Example Cases:
Belknap v. Meakes (1989) (BCCA) - civil
Facts: A new trial was requested in a case where a doctor had been sued in negligence. Trial judge said that evidence of what the doctor usually did as habit cannot be used to establish what the doctor did on this particular occasion.
Issue: Whether evidence of habit could be used as evidence in a malpractice suit
Held:There is no reason why habit should not be used as evidence either of negligent action or careful action
Evidence of habit is admissible because evidence of what ordinarily would have been done demonstrates a probability that the general case will be followed in a particular case (in the absence of evidence of what happened in the actual case).
Devgan v. College of Physicians & Surgeons (Ontario) (2005) (Div. Ct.) - civil
Facts: Medical malpractice case where a doctor charged exorbitant fees for treatment and failed to fairly and accurately explain the likelihood of success.
Issue: whether a doctor was allowed to lead witnesses who reported that he had not claimed that he would be able to cure him.
Held: Evidence inadmissible. Was not evidence of habit since the testimony of 3 or 4 patients only represented a small sample from hundreds of patients – did not have sufficient probative value.
Comment:Important question is not whether the evidence is evidence of habit, but whether the evidence can be discredited.
Facts: Accused was charged with first degree murder. In order to support his claim of self-defence, the accused wanted to introduce witness testimony that the deceased had had a habit of carrying a gun.
Issue: Is this evidence of habit relevant?
Trial judge: Evidence of habit was inadmissible - no evidence that the deceased has a gun in his possession on that particular day.
Held: Evidence was admissible:
Evidence supporting the inference that the deceased and used a weapon during the confrontation was relevant
Evidence of habit proceeds on the basis that repeated conduct in a given situation is a reliable predictor of conduct in a given situation
Comment: For evidence to fall afoul of the character evidence of rule, it must be discredited.
What is character evidence?
Character evidence = Evidence of some kind of disposition or propensity on the part of the accused to act in a certain way that leads to the inference that they acted in they way on a particular occasion As a basic rule, character evidence is relevant. However, the Crown is forbidden to use it in their opening case.
However, if the defence introduces evidence to try and establish good character, then the doors are open for the Crown respond with evidence of bad character.
Character evidence is always relevant in these cases:
E.g. in a child custody cases, with one side saying the other is a bad parent / alcoholic, character is centrally important
E.g. in defamation cases trials usually involves allegations that defendant said plaintiff has a bad character, and defence is the truth of these statements
Character very relevant at sentencing hearing of accused.
Character evidence about a third party which is being led to help assess the state of mind of the accused – may not be admitted to show that they acted violently, but only that the accused might have had reason to expect violence from the accused
E.g. in self-defence, may be able to show that a third parties propensity for violence bolsters the honestly held belief that accused thought his life to be in danger
Why does the common law view character evidence as problematic?
Concern with such evidence is that a jury will not be able to assess the issue adequately since distracted by evidence of bad character of the accused, taking focus off the facts
Worried that they may convict not because the Crown has fully established their case, but because the jury thinks that they are a bad person
May be time consuming to examine character evidence
Evidence of general reputation (218-220) – general reputation in the relevant community. Cannot be the witness’s personal opinion.
Rowton Rule: the only evidence of bad character that is admissible from character witnesses is evidence of general reputation – not simply evidence of personal opinion
However, in practice this rule is not often strictly adhered to and witnesses will give their personal opinion without objection
Expert evidence (discussed later)
Increasingly, experts such as psychologists or psychiatrists will testify as to the “character” of the accused
Anything that the accused says as a witness (223-227)
McNamara – Accused was charged with conspiracy to defraud. When asked how he ran his company he responded “Like any company should be run, legally.” Judge ruled that the accused had put his character for honesty at issue and that the Crown was therefore permitted to question him on his character.
McFadden – An accused charged with first degree murder stated that “I have the most beautiful wife in the world. I worship the ground she walks on”. BCCA held that in making this statement he had put his character for sexual morality at issue by conveying that he would not get involved with another woman.
What may not be?
Personal opinion (tends not to be observed all that strictly)
Specific acts – generally shouldn’t be evidence about specific good or bad actions undertaken by the accused
How may the Crown respond when the accused puts their character at issue?
By cross-examining the defense’s witness
By cross-examining the accused – s. 12 allows the accused to be cross-examined on their previous criminal record. But only comes into play once they are on the witness stand!
S. 666 – where an accused puts their character at issue, the Crown may respond by questioning them about their previous criminal record
By bringing evidence of specific (bad) acts
Crown may call its own reputation witnesses, but only after the accused has brought their character into issue during the defence case
Crown may call expert witnesses
What’s the difference between s.666 of CC and s.12 of CEA?
Both about convictions of the accused: S.666 is about character, s.12 is about credibility.
Procedural: If it’s character the accused must have put their character at issue (666). S.666 allows previous convictions if accused has put their character at issue, irrespective of whether they have taken the stand. S.12 only comes up if accused takes the stand or will take the stand.
