Rules of Evidence: A Practical Approach

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Understand the value and danger of character evidence.
Recognize when character evidence is admissible and when it is not.
Describe how a person’s criminal record can be used in a trial.
Discuss the differences between character evidence and similar fact evidence.
Understand the value and danger of similar fact evidence.
Recognize the difference between character evidence and expert evidence of propensity or disposition.
Understand the role of third-party character evidence.
Discuss differences among criminal, civil, and administrative proceedings in relation to character evidence.

Definition of Character Evidence:
- Evidence of past acts, used to prove that a person acted in a certain way in a specific situation.
Probative Value:
- Refers to the strength or value of a fact in proving what a party seeks to establish.
Potential Prejudice:
- Courts may hesitate to admit character evidence due to concerns over its misuse and possible undue weight by the trier of fact.

Prosecution Restrictions:
- Prosecution is NOT allowed to introduce evidence of an accused’s bad character or previous convictions.
Reasons for Restrictions:
- Fairness: Accused should be tried based on specific evidence and not their entire life.
- Jury Impartiality: To prevent juries from focusing on past actions unrelated to the current case.

When Accused Puts Character in Issue:
- An accused can introduce evidence of good character.
Methods of Introducing Character Evidence:
- By taking the witness stand and attesting to their character.
- Calling witnesses to testify to their good behavior.
Rule for Witnesses:
- Witnesses can only swear to the general reputation of the accused in the community, not provide personal opinions.

General Prohibition:
- Prosecutors usually cannot introduce the accused’s bad character to influence the jury’s verdict.
- Reference case: R v Cook, 2020 ONCA 731 indicates risk of wrongful conviction based on bad character evidence.
Criminal Record Admission:
- Generally, the Crown cannot include the accused’s criminal record as evidence.
- Exception: When assessing credibility if the accused decides to testify.
- Judicial discretion exists to disallow criminal record evidence.

Good character evidence assessed by:
- Its limited meaningfulness as people with good character can still commit crimes.
- Once the accused presents good character evidence, it becomes an issue.
- The Crown may challenge character through cross-examination or by presenting their own witnesses.

Definition of Propensity Evidence:
- Evidence showcasing an accused person’s psychiatric tendency to act in a certain manner.
- Such evidence is highly prejudicial and likely to be inadmissible unless it represents clear psychopathological origins.

Co-accused may present evidence regarding one another's bad character.
This can affect their own character, leading to potential attack by other parties.

The person calling a witness cannot bolster the witness's credibility through good character evidence.
Witnesses, not a party to the case, do not expose their liberty and their credibility can be attacked based on relevance.
Exceptions exist for instances of caught lying where a witness's general credibility may be questioned.

Rape Shield Provisions:
- Criminal Code provisions prevent admission of complainant's sexual history to infer consent or credibility.

Definition: Evidence showing that an accused committed similar offences previously, admissible if relevant beyond mere predisposition.
- Must establish an important matter aside from the disposition of the accused.
- The Crown cannot present this for prohibited inference (Reference: R v Handy, 2002 SCC 56).

Starting assumption is disallowance of bad character evidence.
The Crown must prove that bad character evidence is relevant to another issue beyond the accused’s character.
Must show that the probative value exceeds the prejudicial effect (on a balance of probabilities).

No strict rules for how similar facts must be for introduction against the accused; "striking similarity" is often referenced.
Recognized prejudices:
- Moral Prejudice: Negative perceptions the jury may hold.
- Reasoning Prejudice: Misguided conclusions by the jury based on prior similar acts (Reference: R v Johnson, 2010 ONCA 646).

Crown's Restrictions: Witnesses cannot be asked in chief about prior consistent statements they made related to their current testimony.

Two key elements to the rule:
- Defence cannot posit that the accused previously declared innocence prior to trial.
- Prosecution witnesses cannot be questioned about any such statements from the accused.

This prevents witnesses, particularly the accused, from fabricating evidence or altering previous statements (Reference: R. v Roberts).
The accused must take the stand themselves to present their defense.

Rebutting Fabrication Suggestions:
- Can address claims of recent fabrication if suggested by either party.
Consistency of Identification:
- Related to the identification process through means such as photo line-ups.

Res Gestae:
- Explanation contemporaneous to an act is strong consistency proof (e.g., statements upon arrest).
Accused's Responses During Confrontation:
- Spontaneous exculpatory statements show reactions when confronted by police.

This presentation contains comprehensive information regarding character evidence, prior statements, and opinions in legal contexts, as adapted from the Rules of Evidence: A Practical Approach. All rights reserved by Emond Montgomery Publications.