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Evidence - Character Evidence
MORE CASES
Part 2
. R. v. Hussein ['tendency' evidence introduced by SS]
In R. v. Hussein (SCC, 2026) the Supreme Court of Canada dismissed a further appeal (the CA also dismissed), this after the "trial judge dismissed Mr. Hussein’s Corbett application after concluding that the probative value of the criminal record outweighed its prejudicial effect".
Here the court considers basic principles of character evidence, and - in the unquoted but referenced paras - extensive further discussion of what I am newly calling 'tendency evidence' as a consolidation of similar fact, character, propensity, discreditable conduct (and more) evidence:(1) General Principles of Character Evidence
[29] An accused’s criminal record is a form of character evidence when admitted under s. 12(1) of the CEA (R. v. Stratton (1978), 1978 CanLII 1644 (ON CA), 42 C.C.C. (2d) 449 (Ont. C.A.), at p. 461). An overview of the common law principles governing the use of character evidence in criminal proceedings is therefore necessary in order to properly contextualize the rules governing the admission of an accused’s criminal record.
[30] 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” (Paciocco, Paciocco and Stuesser, at p. 63). This evidence can take different forms. For example, character can be proven directly through statements about an individual’s reputation in the community (see, e.g., R. v. Close (1982), 1982 CanLII 1914 (ON CA), 38 O.R. (2d) 453 (C.A.), at p. 460; R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, at p. 637). In some situations, expert evidence can be relied upon to prove that the perpetrator of a crime or the accused has a distinctive disposition (Mohan, at p. 37; see also McMillan v. The Queen, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, at p. 827). Character can also be established circumstantially, such as through evidence of past actions (see Morris v. The Queen, 1978 CanLII 168 (SCC), [1979] 1 S.C.R. 405, at pp. 437-39; R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124, at p. 145; R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at pp. 536-37).
[31] Character evidence is often introduced to support one or both of the following inferences. The primary inference that can be drawn from character evidence relates to the likelihood that an individual acted in a certain manner. It is a matter of common sense that “the fact that a person has acted in a particular way in the past tends to support the inference that he or she has acted that way again” (Arp, at para. 39). The secondary inference that can be drawn from character evidence relates to the likelihood that a particular witness is credible. As this Court explained in Corbett, one of the factors that a trier of fact may consider when assessing the credibility of a witness is their “habits or mode of life” (p. 685; see also Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 831-32).
[32] Over time, the common law has developed various rules regulating how character evidence may be used in criminal proceedings. For example, the common law rule against oath-helping prohibits parties from introducing character evidence for the sole purpose of bolstering a witness’s credibility unless an opposing party has attempted to undermine that credibility (see R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at pp. 405-8; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 729-30). However, the defence can call character witnesses to testify to the good character of the accused, regardless of whether the Crown has impeached the accused’s character (R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 112 O.A.C. 233 (Ont. C.A.), at para. 21). If the accused adduces good character evidence, the trial judge must instruct the jury that it is relevant with respect to both the primary and the secondary inferences (R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, at para. 135).
[33] When evidence of the accused’s good character is introduced through lay witnesses, the witnesses must testify to the accused’s reputation in the community rather than giving statements of personal opinion or evidence concerning past actions (R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 348). This restriction on the form in which good character evidence can be introduced does not extend to the accused, who is permitted to testify to prior acts of good conduct (ibid.; Close, at p. 460).
[34] For our purposes, the most pertinent common law rule on character evidence is the rule treating Crown-led evidence of the accused’s bad character, other than conduct that forms the subject matter of the charge, as presumptively inadmissible. This rule encompasses any discreditable evidence, including conduct or information about the accused that a reasonable observer would likely find to be morally objectionable or indicative of a reprehensible character (Paciocco, Paciocco and Stuesser, at p. 68; see also Lederman, Fuerst and Stewart, at ¶11.2; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at pp. 941-42; R. v. T.J.F., 2024 SCC 38, at paras. 75-77).
[35] The rationale for this rule is not based on relevance. As discussed, character evidence can be relevant to the question of whether the accused acted in a certain manner and to the question of whether the accused is credible. Instead, as this Court explained in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-40, the rationale for the exclusionary rule stems from recognition of the fact that bad character evidence often contributes to reasoning prejudice and moral prejudice.
[36] Both forms of prejudice undermine trial fairness (see Handy, at para. 148). Reasoning prejudice refers to the risk that bad character evidence will distract the trier of fact from deciding an issue in a reasoned way, perhaps by causing confusion or attracting disproportionate attention (Paciocco, Paciocco and Stuesser, at p. 70; Handy, at paras. 144-47). Moral prejudice refers to the risk that bad character evidence will be used by the trier of fact to draw the prohibited “general propensity” inference that the accused is the kind of bad person likely to commit the offence charged (Paciocco, Paciocco and Stuesser, at pp. 70 and 74; Handy, at paras. 31 and 139). The common law has long recognized that this line of reasoning is unfair because it leads to convictions on the basis of “bad personhood”, effectively relieving the Crown of having to prove every element of the offence beyond a reasonable doubt (see Handy, at paras. 31-33 and 72).
[37] In Handy, this Court repeatedly emphasized the “poisonous” nature of bad character evidence, observing that, when its admission is not tightly circumscribed by trial judges, there is a high likelihood that the trier of fact will, even with a limiting instruction, engage in impermissible propensity reasoning in order to convict the accused (see paras. 40, 58, 138 and 141). When such reasoning is used, the conviction will be wrongfully based on “prejudice rather than proof”, thereby undermining the accused’s right to be presumed innocent and to receive a fair trial (para. 139). It is the absence of the attendant risk of a wrongful conviction that explains why this exclusionary rule does not extend to ordinary witnesses (see R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 32; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 139).
[38] Despite the inherent prejudice that accompanies bad character evidence, the exclusionary rule is not absolute. In exceptional circumstances, the Crown may lead evidence of bad character to support a primary inference on an issue related to the guilt or innocence of the accused (Handy, at paras. 62-68). When the Crown seeks to introduce this evidence, the trial judge must be satisfied on a balance of probabilities that “in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception” (para. 55). The test for the admission of bad character evidence is “strict” given that its probative value must be “so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury” (R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 729 and 732). Accordingly, the evidence must go beyond showing the general disposition of the accused (Handy, at para. 71).
[39] Where the presumption of inadmissibility is successfully rebutted in the manner described above, the Crown is permitted to use bad character evidence to support a primary inference — that the accused likely did or did not act or think in a certain manner. However, there are other situations where the Crown may be permitted to adduce evidence of bad character for a more limited purpose. For example, if the defence puts the character of the accused in issue, the Crown is permitted to introduce evidence of bad character solely for the purposes of rebutting the accused’s evidence of good character and, if the accused has testified to their good character, impugning the accused’s credibility by suggesting that they lied during their testimony (McNamara (No. 1), at p. 350). This rebuttal evidence of bad character cannot be used by the Crown to support a primary inference regarding the guilt or innocence of the accused, and the jury must be instructed on this distinction (R. v. H. (E.D.), 2000 BCCA 523, 38 C.R. (5th) 74, at para. 19; see also R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1311).
[40] Generally speaking, an accused puts their character in issue when they proffer evidence to suggest that they are not the “type” of person to commit the offence in question (McNamara (No. 1), at p. 346). This can occur in situations where the accused comments positively on their disposition or makes statements regarding the absence of past misconduct (see Farrant, at p. 145; Morris, at pp. 437-38). Even in these circumstances, trial judges retain their discretion to exclude the Crown’s rebuttal evidence of bad character if its prejudicial effect outweighs its probative value (Lederman, Fuerst and Stewart, at ¶10.53).
[41] Similar principles apply when the Crown uses the accused’s criminal record to rebut their evidence of good character. When the accused puts their character in issue, s. 666 of the Criminal Code, R.S.C. 1985, c. C-46, permits the Crown to adduce the accused’s criminal record for the limited purposes of rebutting evidence of their good character and, if the accused has testified, impugning their credibility. Under this provision, the Crown may adduce the criminal record regardless of whether the accused testifies (Lederman, Fuerst and Stewart, at ¶10.67). The Crown is also permitted to adduce the facts underlying a particular conviction as part of its efforts to rebut the accused’s evidence of good character (R. v. L.K.W. (1999), 1999 CanLII 3791 (ON CA), 126 O.A.C. 39, at para. 66). At paras 52-116 the court considers extensively whether a presumption of inadmissibility applies, the relevance of, principles governing the admission, the prejudicial impact of admission and other aspects of criminal records evidence under CEA s.12(1). This discussion also delves into the common themes that bind the related law of character evidence, propensity evidence, discreditable conduct and more. These paragraphs are important reading for anyone involved in these issues.
. R. v. Gillen
In R. v. Gillen (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal and here comments on the admissibility of character evidence:[24] Character evidence that shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. However, evidence that tends to show bad character or a disposition on the part of the accused is admissible if it is relevant to some other issue beyond disposition or character, and the probative value outweighs the prejudicial effect: R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697. The admission of such evidence should be accompanied by a limiting instruction to the jury: R. v. Amin, 2024 ONCA 237, 435 C.C.C. (3d) 528. . R. v. Dion
In R. v. Dion (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal from a conviction for first-degree murder.
The court consider 'bad character' evidence, here in a jury charge context:B. Did the trial judge err by giving an inadequate bad character evidence direction?
[59] The law is designed to prevent the general bad character of an accused person from being relied upon to assist in their conviction, because individuals are to be convicted of crimes based solely on case specific evidence that proves their guilt of the specifically alleged offence beyond a reasonable doubt, not because of the kind of person that they are. “[T]he Crown is not entitled to ease its burden by stigmatizing the accused as a bad person”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72. Triers of fact are therefore positively prohibited from reasoning “that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence”: Handy, at para. 31; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 80. This is a strictly “prohibited inference”.
[60] If, in a jury trial, otherwise admissible Crown evidence shows the bad general disposition or bad character of the accused, the trial judge is required to direct the jury in a way that will prevent the “moral prejudice” that may be caused by this impermissible reasoning. Such a direction will ordinarily include both an affirmative direction on the appropriate, permissible use for which the evidence was admitted (R. v. Rulli (1999), 1999 CanLII 3712 (ON CA), 120 O.A.C. 357 (C.A.), at para. 15, leave to appeal refused, [1999] S.C.C.A. No. 284), and a negative direction or “limiting instruction” directing jurors to avoid relying on the prohibited inference: R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at p. 734.
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[65] .... A limiting direction “is not necessary in every case” where evidence has been led that reflects poorly on the character of the accused: R. v. C.B., 2008 ONCA 486, 237 O.A.C. 287, at para. 35. In my view, this is one of those cases where a limiting direction was not needed.
[66] First, in the typical case where a limiting direction is required, the Crown will have incidentally established the bad character of the accused through the admissible evidence it has called. Where this occurs, it is incumbent on a trial judge to ensure that jurors do not draw the prohibited inference from that evidence. In this case, the Crown did not incidentally establish Mr. Dion’s bad character through admissible evidence because the trial judge explicitly directed the jury regarding the limited use they could make of the hearsay evidence the Crown had called. Specifically, he instructed them that they were not being asked to determine whether the events Heeley described occurred. If the jurors followed that direction, they could not make a finding that the events that reflect poorly on Mr. Dion’s character occurred. They would therefore lack any factual foundation for concluding that Mr. Dion was of bad character and for drawing a prohibited inference: see Candir, at paras. 78, 88.
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[68] Third, even where there is bad character evidence before a jury, if it describes a completely different and materially less offensive kind of wrongdoing, the failure to give a limiting direction may not be fatal: R. v. R.M., (1998), 1998 CanLII 7184 (ON CA), 113 O.A.C. 40, at para. 9; R. v. Beausoleil, 2011 ONCA 471, 283 O.A.C. 44, at para. 26; R. v. C.(N.P.) (2007), 2007 ONCA 457 (CanLII), 86 O.R. (3d) 571 (C.A.), at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 144. .... . R. v. C.H.
In R. v. C.H. (Ont CA, 2023) the Court of Appeal usefully considered a situation where necessary (and otherwise admissible) case facts naturally reflected poorly on the character of the defendant. The appellant sought to challenge their conviction arguing that the test for admitting character/similar-fact evidence was not made out, but the CA dismissed the argument:A. THE TREATMENT OF EVIDENCE OF C.H.’S CHARACTER
[4] Evidence unfolding the narrative of events and describing the relationship reflected poorly on C.H.’s character. As the trial judge found, this evidence showed C.H.’s habitual abuse of alcohol, his practice of using profanity with the complainant, and his self-centered and controlling behaviour within their relationship. C.H. does not take issue with the admissibility of the evidence that led to these inferences. It was inevitable that this narrative evidence would be heard so that the allegations could be understood. Indeed, C.H. addressed his behaviour within the relationship when he testified and through the closing submission of his counsel. His appeal alleges that the trial judge misused this evidence by relying upon it to support C.H.’s convictions without a similar fact evidence application or ruling.
[5] Although I recognize it to be arguable that the evidence disclosing the unflattering picture of C.H.’s conduct in the relationship was discreditable conduct evidence that should not have been relied on without a successful Crown application pursuant to the similar fact evidence rule, in the circumstances of this case, the failure to conduct an admissibility voir dire and to make an admissibility ruling does not give rise to a reversible error.
[6] In R. v. Tsigirlash, 2019 ONCA 650, this court rejected a similar ground of appeal where the trial judge put clearly admissible similar fact evidence to an appropriate use despite failing to conduct a voir dire and to make an admissibility ruling that addressed the character evidence rules. Zarnett J.A. reasoned, at para. 27, that no prejudice was caused to Mr. Tsigirlash given that the proposed use of the evidence was clear, the defence had a meaningful opportunity to respond, and the trial judge was in a position to properly assess the use to which the evidence was to be put. The circumstances here are similar.
[7] First, the evidence in this case was clearly admissible and was put to an appropriate use. As indicated, it was inevitable that it was necessarily going to be heard when the narrative of the events and of the relationship were unfolded.
[8] Moreover, this evidence was used by the trial judge for a purpose that would clearly have been permitted had a similar fact evidence application been brought. Specifically, the trial judge relied upon this evidence for the relevant and probative purpose of assessing the plausibility of the competing accounts that the complainant and C.H. provided relating to two of the assault allegations the Crown relied upon in support of its global assault account. The trial judge found with respect to the “Woodpile incident” and the “Door incident” that the complainant’s accounts of their actions leading up to the assaults rang true given the nature of their relationship, but C.H.’s accounts did not. Simply put, her accounts of his behaviour prior to the alleged assaults were consistent with the dynamic of the relationship, but his accounts were not.
[9] I do not accept C.H.’s submission that the trial judge used his comments about C.H.’s unflattering conduct within the relationship for the broader prohibited purpose of inferring that C.H. was likely guilty of offences charged because he is the kind of person who would commit them. There is no indication in the trial judge’s incident-by-incident analysis that he did so, and the fact that he had a reasonable doubt about some of the allegations against C.H. suggests that he did not base convictions on general character reasoning. So, too, does the fact that the trial judge addressed the relationship evidence only when explaining his reasoning on two of the assault allegations.
[10] I reject C.H.’s submission that we should infer that the trial judge featured general character reasoning in his analysis because he commented at some length on the poor character arising from C.H.’s general conduct within the relationship early in his analysis. I am not persuaded that the presence or placement of these comments reflect on the importance the trial judge attached to C.H.’s general character. In these early passages in his analysis the trial judge was responding directly, as a “general point”, to C.H.’s counsel’s acknowledgement in his closing submissions that C.H. does not claim to be the “perfect man,” by exposing that this acknowledgment “understates [C.H.’s] approach to things.” I am not persuaded that the trial judge used the evidence for impermissible bad character purposes.
[11] My conclusion that this evidence would have been found to be admissible had an application been made and a voir dire been conducted is based not just on the probative and appropriate purpose for which this evidence was used. It is also premised on my conclusion that the prejudicial effect of this evidence is modest. C.H.’s behaviour within the relationship, which the evidence shows, is not flattering but it is not criminal. Neither is it so inflammatory that it would be likely to promote inappropriate reasoning or distract the trial judge.
[12] Therefore, I am persuaded that the evidence was clearly admissible and that the purpose for which it was used was appropriate.
[13] Second, the same considerations that drove Tsigirlash apply here. The proposed use of the evidence was or should have been known to C.H., it being obvious that the plausibility of claims about behaviour within a relationship can be informed by the nature of the relationship. C.H. did not object to the evidence and not only had an opportunity to respond to it but did so by addressing his own behaviour within the relationship during his testimony and commenting on his character in his closing submissions. The trial judge also had an ample basis for drawing the conclusions he did and drew reasonable inferences from them.
[14] Hence, no reversible error occurred through the trial judge’s failure to conduct an admissibility voir dire or to rule directly on the permissible uses that could be made of this evidence.
[15] I would add that the trial judge referred to this evidence in adjudicating only two of the assault allegations captured by the global assault count, and not in determining the other two assault allegations he accepted relating to the “Door Handle incident” and the “Dresser incident”. He did not consider it in assessing the sexual assault allegations, either. Even if the trial judge had erred in his reasoning on the two assault allegations, there is no basis for concluding that those errors would have tainted his other findings of assaultive behaviour that support that assault conviction, or the sexual assault conviction. Even if the error was made out, it would not be a basis for setting aside his convictions.
[16] I would therefore reject this ground of appeal. . R. v. Dent
In R. v. Dent (Ont CA, 2023) the Court of Appeal considered 'character evidence' [here called 'impermissible propensity reasoning'] in this criminal appeal:[90] Had the trial judge reasoned in this fashion he would have fallen into error. “It is trite law that ‘character evidence [called by the Crown] which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible’”: R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at p. 747(emphasis in the original). However, I see no indication that the trial judge engaged in prohibited bad character reasoning. Although inelegantly worded, the trial judge’s conclusion that Ms. Dent was “aligned with the type of person capable of creating this massive defamatory campaign” was not a comment on her general bad character. It was a summation of the trial judge’s conclusion that Ms. Dent reflected the circumstantial indicia of guilt that he had identified in his “profile” reasoning.
[91] Instead, the inferences the trial judge drew from the discreditable conduct evidence were permissible, specific inferences material to the case. He was quite explicit about the purpose for which he used the BMO complaints, namely, as demonstrating “malice and animus towards [Mr.] Lalonde,” which is an entirely appropriate inference to draw from discreditable conduct evidence: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494 (Ont. C.A.), at para. 28. Given its timing, he was also entitled to consider Ms. Dent’s Ministry letter for the same purpose. The trial judge did not say that the falsity of Ms. Dent’s complaints about their daughter being sexually assaulted was evidence of animus. Instead, he inferred that the persistence, timing and manner in which those complaints were made, including alleging sexual abuse in the Second BMO complaint, exhibited Ms. Dent’s campaign to destroy Mr. Lalonde. I see no problem with this line of reasoning. . R. v. Millard
In R. v. Millard (Ont CA, 2023) the Court of Appeal considered the use of 'bad character' evidence in joint trials:[14] In a joint trial, an accused may elicit bad character evidence of a co‑accused to raise a reasonable doubt about their own culpability. The party seeking to lead the evidence must provide a sound evidentiary foundation that supports the specific purpose for which the evidence is being led and identify the probative value and associated prejudice. Where the prejudicial effect of the evidence does not substantially outweigh its probative value, the evidence will be admissible: R v. Pollock (2004), 2004 CanLII 16082 (ON CA), 188 O.A.C. 37 (C.A.), at paras. 106-7, 110, leave to appeal refused, [2004] S.C.C.A. No. 405; R v. Davani, 2023 ONCA 169, at para. 41.
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[17] A trial judge’s decision on the admissibility of evidence of prior discreditable conduct involves a delicate balancing of the probative value of the evidence against its prejudicial effect and is entitled to a high degree of appellate deference: R v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 150 O.A.C. 79 (C.A.), at para. 9; R v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 733-34. I see no basis for appellate intervention with the trial judge’s decisions. . R. v. G.M.C.
In R. v. G.M.C. (Ont CA, 2021) the Court of Appeal set out when evidence of bad character was relevant for assessing credibility:[77] The limits on the use of bad character evidence were set out in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64:As the majority of the Court of Appeal noted, the evidence of Mr. Calnen's after-the-fact conduct was admissible on the question of his credibility. Evidence of extrinsic discreditable conduct that is otherwise relevant and admissible with respect to an issue in the case may be used to assess the accused's overall credibility. In R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this common sense proposition:To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is a matter of common sense that evidence of bad character may reflect badly on the accused's credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth. This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged. . R. v. Camara
In R. v. Camara (Ont CA, 2021) the Court of Appeal (Watt JA) comments on bad character evidence:[49] It is uncontroversial that, generally, the Crown is not permitted to use bad character evidence as circumstantial proof of conduct. We insist that, if guilt is to be established, it be by proof of conduct, not proof of character: R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 96, leave to appeal refused [2010] S.C.C.A. No. 152; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 63.
[50] However, the character rule is subject to exceptions. Among those is where evidence revealing an accused’s bad character is relevant to an issue in the case, provided the probative value of the evidence on that issue exceeds its prejudicial effect: Moo, at para. 97; Handy, at para. 41; G. (S.G.), at para. 65.
[51] The categories of relevance are not closed. Relevance is relative and is assessed in the context of the case as a whole and the positions of counsel. Evidence of bad character may be exceptionally admitted where relevant to establish motive or animus, state of mind (such as fear on the part of a victim), narrative, or to provide context for other events: R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 54; R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 90 C.C.C. (3d) 144 (Ont. C.A.), at pp. 152-3; R. v. MacDonald (2002), 2002 CanLII 14251 (ON CA), 170 C.C.C. (3d) 46 (Ont. C.A.), at para. 35.
[52] A judge presiding in a criminal jury trial has a duty to ensure that only relevant, material, and admissible evidence is received: T. (J.A.), at paras. 50, 92. Where evidence of limited relevance or admissibility is received, the judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 113 per Martin J., (dissenting, but not on this point); R. v. Ball, 2019 BCCA 32, 371 C.C.C. (3d) 381, at para. 91; T. (J.A.), at para. 50. . R. v. Norris
In R. v. Norris (Ont CA, 2020) the Court of Appeal comments on similar fact evidence as a form of bad character evidence:[23] The presumptive inadmissibility of similar act evidence – a form of bad character evidence – is rooted in concerns over moral and reasoning prejudice. Moral prejudice results where triers of fact decide cases, not based on what the accused has done, but based on the kind of person the trier of fact perceives the accused to be: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, at para. 110. Reasoning prejudice results where similar act evidence gives rise to confusion and distracts the trier of fact from its proper focus on the charges before the court. . R. v. Cook
In R. v. Cook (Ont CA, 2020) the Court of Appeal considers when 'bad character' evidence is admissible:[39] In his leading judgment in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. said, at para. 72: “Discreditable disposition or character evidence, at large, creates nothing but ‘moral prejudice’ and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.” See also R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 44, per Moldaver J. This is precisely what happened in this case – the Crown attempted to ease its burden by supplementing what appeared to be a formidable case with irrelevant and gratuitous bad character evidence.
[40] Evidence of gang association, affiliation, or membership is bad character evidence. It is presumptively inadmissible: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90. It impels the prohibited inference that the accused is the type of person who is likely to have committed the offence. This type of evidence is particularly dangerous because it involves “unrelated criminal activity”: R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 21. More generally, it may also insinuate that the accused embraces a positive attitude towards the criminal lifestyle.
[41] Although evidence of gang affiliation is presumptively inadmissible, it has a legitimate place in some trials. As Strathy C.J.O. explained in Phan, at para. 91:While evidence of gang membership can be highly prejudicial, it may be relevant for a variety of purposes. Like all bad character evidence, it may be admissible on an exceptional basis where its probative value outweighs its prejudicial effect. It may be admissible to provide context or narrative, to establish animus or motive, or to establish the accused's state of mind or intention, among other purposes. The case law is replete with the admission of gang association evidence for these and other purposes. [Emphasis added.] [42] In any given case, it is incumbent on the trial judge to determine whether and to what extent such evidence is admissible. This is required by the trial judge’s overarching duty as a gatekeeper: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 44. As Cronk J.A. wrote in R. v. B.D., 2016 ONCA 673, 342 C.C.C. (3d) 217, at para. 51, “[i]t was incumbent on the trial judge to ensure that only relevant and material evidence was placed before the jury and that the probative value of such evidence outweighed its prejudicial effect.”
[43] The Hells Angels evidence should never have been admitted at this trial. It was not relevant to any of the issues the jury was required to decide: (1) whether the appellant possessed the steroids for the purpose of trafficking; (2) whether the appellant was in possession of the cocaine that was seized behind his backyard; and (3) whether the cash seized from the appellant’s and his father’s residences was derived from the commission of crime (i.e., the drug offences). . R v Bos
In R. v. Bos (Ont CA, 2016) the Court of Appeal sets out the basic approach of the court to the admission of character evidence, here referred to in it's negative form as 'discreditable conduct' evidence:[72] Evidence is discreditable when it tends to show conduct of the accused, which would be viewed with disapproval by a reasonable person, beyond what is alleged in the indictment: see e.g. R. v. Johnson, 2010 ONCA 646 (CanLII), at para. 90.
[73] Such evidence is presumptively inadmissible because “[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”: R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at para. 37.
[74] In Johnson, at paras. 97-101, Rouleau J.A. discussed the jurisprudence on discreditable conduct evidence adduced to support motive. He explained that such motive evidence is not automatically admissible. Rather, the trial judge must satisfy herself or himself that the probative value of the evidence outweighs its prejudicial effect. He noted that discreditable conduct evidence that is adduced to advance a speculative theory of motive ought to be excluded. However, “evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative”, and thus more likely to outweigh its inherent prejudicial effect: Johnson, at para. 101.
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