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Rules of Evidence:
A Practical Approach, Third
Edition
Michael Gulycz & Mary Ann Kelly

Copyright © 2023 Emond Montgomery Publications. All rights reserved.

Chapter 8
Character Evidence

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 Rules of Evidence: A Practical Approach, 3rd Edition 4

Learning Outcomes
After completing this chapter, you should be able to:
• 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.

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 Rules of Evidence: A Practical Approach, 3rd Edition 5

Learning Outcomes (cont’d)

• 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 the differences between criminal, civil, and
administrative proceedings in relation to character
evidence.

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 Rules of Evidence: A Practical Approach, 3rd Edition 6

Overview of Character Evidence

• Character evidence: Evidence of past acts to prove
that a person acted in a certain way.
• A character may have probative value: The value or
strength of a fact in proving what the party seeks to
establish.
• However, courts may be reluctant to admit character
evidence because of its potential prejudice: The
potential for a piece of proposed evidence to be
misused (usually given too much weight) by the trier
of fact.

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 Rules of Evidence: A Practical Approach, 3rd Edition 7

Overview of Character Evidence

(cont’d)
Considerations in Measuring Probative Value
1. Proximity in time between the offence and similar
acts.
2. Similarity between the charged conduct and similar
acts.
3. Number of similar acts.
4. Circumstances surrounding the similar acts.
5. Distinctive features that unify the incidents.

(continued on next slide)

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 Rules of Evidence: A Practical Approach, 3rd Edition 8

Overview of Character Evidence

(cont’d)
Considerations in Measuring Probative Value
(cont’d)
6. Existence of any intervening acts.
7. Any other factors that support or rebut the
underlying unity of the acts.
– R v Handy, para 82

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 Rules of Evidence: A Practical Approach, 3rd Edition 9

Against Whom May Character

Evidence Be Presented?
• Courts will look at a number of different factors:
• Civil or criminal trial.
• Who the evidence would be used against.
• Whether the evidence is of good or bad character.
• Consider the degree of injustice that will flow from the
misuse of evidence.
• It can also be used for testimony and credibility of
third parties.

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 Rules of Evidence: A Practical Approach, 3rd Edition 10

Character Evidence of a Person

Charged with a Criminal Offence
• Prosecutors are generally NOT permitted to
introduce information about an accused’s bad
character in order to assist the trier of fact in
concluding that the accused was also bad on this
particular occasion.
• Consider R v Cook, 2020 ONCA 731.
• The jury may use such evidence to justify a
conviction for the wrong reasons.

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 Rules of Evidence: A Practical Approach, 3rd Edition 11

Character Evidence of a Person

Charged with a Criminal Offence
(cont’d)
Criminal Record and the Accused
• The criminal record generally may not be admitted
into evidence by the Crown.
• Exception: To assess general credibility where the
accused chooses to testify.
• Judicial discretion can be used to disallow the
criminal record.

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 Rules of Evidence: A Practical Approach, 3rd Edition 12

Character Evidence of a Person

Charged with a Criminal Offence
(cont’d)
Good Character Evidence
• Not very meaningful; people of good character do bad
things.
• Once the accused calls good character evidence, they
put character in issue.
• Crown is then entitled to attack the accused’s character
by cross-examination of the accused’s witnesses,
calling its own witnesses, and calling its own experts.

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 Rules of Evidence: A Practical Approach, 3rd Edition 13

Character Evidence and Expert

Evidence of Propensity or Disposition
• Propensity or disposition evidence: Evidence of
an accused person’s psychiatric tendency to act a
certain way.
• It is extremely prejudicial against the accused and
will likely be inadmissible.
• Propensity evidence may only be admitted if it is
analogous to a physiological fact.
• i.e., clear signs of psychopathological origin.

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 Rules of Evidence: A Practical Approach, 3rd Edition 14

Character Evidence and Co-Accused

Persons
• The co-accused may be entitled to present evidence
that the other person charged is of bad character.
• The assessment of probative value and prejudicial
effect is still necessary.
• By doing so, the co‐accused person puts their own
character in issue.
• They also become open for attack by the other
person or the Crown.

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 Rules of Evidence: A Practical Approach, 3rd Edition 15

Character Evidence in Civil Cases

and Administrative and Tribunal
Proceedings
• Character evidence is usually not admissible.
• It’s admissible if the character of the party is at
issue (e.g., defamation).
• A criminal conviction could be used as prima facie
proof that the defendant in civil proceedings
committed the offence.

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 Rules of Evidence: A Practical Approach, 3rd Edition 16

Testimony and Credibility of Third

Parties
• The person calling the witness is not entitled to
bolster the witness’s credibility with evidence of
witness’s good character or honesty.
• Witnesses not parties to a criminal trial do not have
their liberty at stake.
• Credibility can be attacked as long as it is relevant
to testimony (collateral facts rule).
• An exception is made when the witness is caught
lying; general credibility can be attacked.

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 Rules of Evidence: A Practical Approach, 3rd Edition 17

Testimony and Credibility of Third

Parties
Third-Party Character Evidence in Sexual
Assault Cases
• Rape shield provisions: Provisions in the
Criminal Code that forbid the admission of
evidence of a complainant’s sexual history to
support an inference that they are more likely to
have given consent or are less worthy of belief.

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 Rules of Evidence: A Practical Approach, 3rd Edition 18

Similar Fact Evidence

• Similar fact evidence: Evidence that shows that
an accused committed similar offences in the
past, which may be admitted provided that it is
relevant to establishing an important matter other
than the accused's predisposition to commit that
type of offence.
• Admissible for certain purposes:
• Not permissible for Crown to lead the evidence
for a prohibited inference.
• See R v Handy 2002 SCC 56.

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 Rules of Evidence: A Practical Approach, 3rd Edition 19

Similar Fact Evidence (cont’d)

Test for Similar Fact Evidence
1. The judge starts from the proposition that evidence
of bad character should not be admitted.
2. The Crown must establish that bad character
evidence is relevant to some other issue beyond
the disposition or character of the accused.
3. The Crown must show on a balance of probabilities
that the probative value of the evidence outweighs
the prejudicial effect.

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 Rules of Evidence: A Practical Approach, 3rd Edition 20

Similar Fact Evidence (cont’d)

• No hard and fast rule regarding how similar the
similar facts must be before they can be introduced
as evidence against an accused.
• Many courts have adopted the phrase “striking
similarity.”
• Two types of prejudice that can result from the
admission of similar fact evidence: moral prejudice
and reasoning prejudice.
• See R v Johnson, 2010 ONCA 646 (CanLII).

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