Leave the Bad Character Comments at the Door of the Courtroom

Authors: Kelsey Scott and Sarah Shuttleworth

During a criminal trial in Canada, the Crown is strictly prohibited from calling general bad character evidence in relation to the accused.[1] The reasoning for this is that bad character evidence may lead jurors into inferring that the accused is guilty of the current offence simply because “they are the sort of person likely to commit the offence they are accused of.”[2]  Therefore, the strict prohibition on the Crown from admitting this type of evidence works to safeguard against the potential for wrongful convictions and ensure the accused receives a fair trial.[3] But what happens when bad character evidence is called by an individual testifying? What are the possible consequences for an accused? This blog post will examine the case of R v. Blake, a case in which the complainant’s testimony contained bad character evidence, and discuss how the court grants remedies in similar types of cases involving a potential miscarriage of justice.

Bad Character Evidence

Character evidence of the accused consists of any evidence that relates to the accused's conduct or reputation outside of the period of the alleged offence in order to make the inference that during the time of the alleged offence, the accused had acted in conformity with that conduct or reputation.[4] This type of evidence can take many forms, such as reports of an accused’s reputation, or the specific past actions of the accused from which conduct can be inferred. In the case of R. v. Blake, the evidence took the form of an opinion from an individual who knew the accused personally.[5] In practice, bad character evidence is presumptively inadmissible, and in order for this type of evidence to be used at trial, a judge must ensure that the required threshold is met. In order to meet the threshold, the following requirements must be satisfied: (1) the judge must determine the probative value of the evidence; (2) the judge must assess the potential for prejudice if this evidence is admitted; and (3) the Crown must establish on a balance of probabilities that the evidence is appropriate.[6]

Furthermore, there are various reasons why bad character evidence is presumptively inadmissible at trial; the fundamental concern is the inherently prejudicial nature of this type of evidence.[7] Firstly, a trier of fact – either a judge in a judge-alone trial, or the jury in a judge and jury trial – may be influenced to believe that the accused has bad character, or is a bad person, and is more likely to have committed the offence in question.[8] Secondly, the trier of fact may subconsciously be influenced by the bad character evidence and subsequently punish the accused by finding them guilty of the offense charged.[9] Third, bad character evidence can confuse the trier of fact by concentrating on the character evidence rather than the facts of the case – this has potential influence on the verdict for the offence charged.[10] Lastly, bad character evidence is distracting to the matter at hand and can often consume a great amount of time in the trial process.[11] Improperly admitted bad character evidence has the potential to cause a wrongful conviction, which has devastating effects for the accused, their families, and the general public.

Due to the high-risk nature of bad character evidence, it is imperative that defence counsel continuously monitor for the emergence of this evidence. Moreover, if a defence counsel believes the Crown or an individual testifying is attempting to admit bad character evidence regarding the accused, defence counsel can object. When considering if bad character evidence should be allowed, the judicial system must ensure that the prejudicial effect and probative value of this type of evidence is carefully weighed and considered. However, if bad character evidence has been shared during complainant or witness testimony, the jury has already heard the contents of the evidence. In this circumstance, defence counsel should object as soon as possible and bring it to the judge’s attention. In addition, the trial judge must promptly give limiting instructions to the jury. Jurors must be warned against reasoning that the accused is a “bad person” who is likely to have committed the charged offences because of the specific bad character evidence.[12] Further, the judge is required to explain to the jury that they must make their decision on each charge only on the basis of the evidence relating to the charge and caution the jury that they must not use evidence that relates only to an allegation when making the decision on any other allegation or incident.[13]

R v Blake

R v Blake was a 2023 Ontario Court of Appeal case in which the appellant – convicted of sexual assault causing bodily harm, unlawful confinement, choking, and uttering death threats – appealed his conviction on the grounds of ineffective assistance of trial counsel.[14] In Blake, the appellant raised five instances in which he said his trial counsel ultimately caused a miscarriage of justice.[15] One of those instances involved the elicitation of prejudicial bad character evidence about the appellant.

Before getting into the specific alleged instance of eliciting bad character evidence, it is important to make note of the test that the Court of Appeal used to establish whether ineffective assistance of counsel was present. The test used in Blake contained three stages:[16]

1.     Appellant must establish, on balance of probabilities, the facts on which the ineffective assistance claims are grounded;

2.     Appellant must show the trial counsel’s representation was ineffective (i.e., it fell outside the “wide range of reasonable professional assistance”); and

3.     Appellant must show that the “ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable” (prejudice component)[17]

The Court of Appeal did not put much emphasis on the first stage of the test, as the facts were not in dispute; the second stage was where the Court of Appeal focused on most (and where the bad character evidence was discussed). The bad character evidence in question was brought into the courtroom when the complainant, while being cross-examined by the accused's lawyer, described claims from five other women of sexual assault by the accused, all of whom had similar stories to the complainant on the stand. The other claims were not tried in court and had not led to any charges. The trial judge immediately intervened during the testimony, instructing the jury to disregard, but the accused’s trial counsel continued a line of questioning that explored the other women's claims even further.[18] In the judge’s closing instructions to the jury, the trial judge again instructed the jury to disregard the statements regarding the other claims, as the complainant’s statements on the issue and the suggestion that the accused with responsible for any other sexual assaults were inadmissible hearsay.[19] 

At the Court of Appeal, the appellant’s trial lawyer defended his own actions (and inaction in intervening) as a tactic in which he was attempting to “challenge the complainant’s credibility by showing that she was prepared to repeat stories from other women without first-hand knowledge.”[20] However, this theory was not brought forward at all during the trial process by defence. Therefore, the Court of Appeal declared that the trial counsel’s eliciting of the bad character evidence fell outside the “wide range of reasonable professional assistance,” satisfying the second stage of the test for ineffective assistance of counsel.[21] 

The Crown argued at the Court of Appeal that the trial judge’s timely intervention and limiting instruction to the jury cured any prejudice, and therefore there was no miscarriage of justice. However, the court said that the “the prejudicial effect of the bad character evidence that trial counsel elicited from the complainant was so severe that, despite the best efforts of the trial judge, it was not cured by the limiting instructions she gave.”[22] Although the trial judge did what she could to instruct the jury to disregard the bad character statements, the prejudice remained in the room, fulfilling the third stage of the test. Therefore, the Court of Appeal concluded that there was ineffective assistance on the part of trial counsel, and a new trial was ordered on this finding alone, despite four additional issues raised by the appellant.[23]

A Reflection on the Findings of R v Blake and the Law

Every person in a courtroom has a “role” that they play – judges, defence counsel, Crown attorneys, juries, witnesses, the accused, etc. Part of the lawyers’ role is to ask witnesses and complainants questions, and to tell a story through these questions. However, lawyers cannot control, or even anticipate, what certain witnesses or complainants will say on the stand (especially if the witness is called on by the other side). Therefore, it is the judge’s role to be the gatekeeper, and to inform the jury in jury trials which aspects of these stories are (and are not) admissible in court. But jurors are human, and it is hard to “unhear” something that is said in court, especially something that makes you view the accused in a different, dimmer light. It is an impossible task to require jurors to disregard bad character evidence of the accused, and the subconscious influence of the evidence can affect the verdict. Juries are meant to be reflective of the general population and most Canadians have very minimal legal training – without fully understanding the rules of evidence, an individual might be more susceptible to the subconscious influence that bad character evidence can have on judgement.

In the case of Blake, trial counsel made things worse by pursing an issue after the trial judge had intervened. Sure, even if counsel would have moved on from the other unfounded claims of sexual assault when the judge intervened, it still would have been difficult to remedy the prejudice, but it would have been a lot less detrimental (and the appeal may have been dismissed). It is the responsibility of lawyers, both Crown and defence, to redirect questioning when the judge points out a slippery slope. When the trial counsel pursued the issue further, he ran down the slope instead of turning the other way, making it impossible for the jurors to disregard the bad character evidence.

Conclusion

Bad character evidence is inadmissible in Canadian courts for multiple reasons, but they all ultimately aim to uphold the right to a fair trial for an accused. In a world where bad character evidence is allowed in court, there is no telling how many trials would result in wrongful convictions and miscarriages of justice, especially in the case of jury trials. But just because something is considered inadmissible doesn’t mean it always stays outside of the courtroom.

Lawyers cannot directly control what is said on the stand. In cases where bad character evidence is brought forth by a witness or complainant, it is crucial that counsel and judges react productively and intervene to prevent any further prejudice. Furthermore, if bad character evidence of a certain threshold is reached – for example, whether a reasonable person would be inclined to give weight to the bad character evidence, either consciously or subconsciously – then perhaps there should be an automatic remedy of a declared mistrial to uphold the fair trial process. Bad character evidence is often high risk and comes with the potential for miscarriages of justice if improperly admitted. While this evidence is presumptively inadmissible, in the case of jury trials, it is critical for the judge to carefully consider if jurors can effectively disregard the evidence. If the judge believes that the bad character evidence will consciously or subconsciously influence the verdict, a mistrial must be called to protect the right to a fair trial for the accused.

[1] David M. Paciocco et al, The Law of Evidence, 8^th ed (Toronto, Canada: University Toronto Press, 2020) at pg 66.

[2] Ibid at pg 66.

[3] Ibid at pg 67.

[4] Ibid at pg 66.

[5] Ibid at pg 63.

[6] R. v. Handy, [2002] 2 SCR 908 at para 55.

[7] R. v. Stubbs, 2013 ONCA 514 at para 55.

[8] R. v. Batte, 2000 ONCA 5750 at para 100.

[9] R. v. MT, 2012 ONCA 511 at para 81.

[10] Ibid at para 81.

[11] Supra note 5 at para 37.

[12] R. v. B.B., 2024 ONCA 766 at para 14.

[13] Ibid at para 14.

[14] R. v. Blake, 2023 ONCA 220 (CanLII).

[15] Ibid at para 2.

[16] Ibid at para 6.

[17] Ibid at para 6.

[18] Ibid at para 9.

[19] Ibid at para 10.

[20] Ibid at para 12.

[21] Ibid at para 14.

[22] Ibid at para 15.

[23] Supra note 13.