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Evidence - Tendency Evidence. R. v. Hussein [tendency evidence introduced]
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.
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