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Evidence - Character Evidence. 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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