If Evidence Is Called That A Complainant Is Violent, That May Open the Door To The Accused's Record

Today’s Court of Appeal decision in R. v. Williams, 2008 ONCA 413 contains a useful summary of the law relating to when an assertion a complainant was of a violent disposition opens the door to evidence of the accused’s earlier violence. The Court rules:

[57] Generally the Crown is not permitted to adduce evidence of an accused’s prior bad acts as circumstantial proof of conduct because of the potential for a trier of fact to rely improperly on the evidence: R. v. Handy (2002), 164 C.C.C. (3d) 481 (S.C.C.) at para. 37 (S.C.C.). However, in some cases, courts recognize that an issue may arise in a trial to which evidence of an accused’s previous misconduct is so highly relevant and cogent that its probative value outweighs any potential for prejudice.

[58] When an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused’s propensity for violence arises. The Crown will be permitted to do so where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and of their respective dispositions for aggression. See R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 408; R. v. Yaeck, [1989] O.J. No. 3002 (Sup. Ct.); R. v. Robertshaw, [1996] O.J. No. 1524 (Ont. Ct. J. (Gen. Div.)); R. v. Hines, [2001] O.J. No. 1112 (Sup. Ct.); R. v. Soikie, [2004] O.J. No. 2901 (Sup. Ct.).

[59] In R. v. Yaeck, Watt. J. as he then was, explained as follows:

By parity of reasoning with that employed in R. v. McMillan [citation omitted], the prosecution should be entitled to show that the combat was between two persons of similar dispositions for violence, not one with and the other without it. The trier of fact would then have evidence bearing on the probability of each version of aggression, as well as the direct evidence thereof, thereby being in a better position to assess the legitimacy of the claim.

[60] A decision whether to admit evidence of an accused’s prior bad acts is subject to a trial judge’s overall assessment as to whether the probative value of the evidence outweighs the potential prejudicial effect: R. v. Sparkes at paras. 7-8.