Bad character and the cut-throat defence

R. v. Earhart, 2010 ONCA 874 holds:

The Legal Principles

[68]          In order for any evidence to be admitted at trial, it must first be found to be relevant to a material issue.  For the majority of evidence adduced, relevance will be obvious, but in some cases a more careful analysis is required.  If evidence is relevant, then the focus turns to an assessment of whether there is any reason not to admit it.

[69]          This latter step is particularly important when considering bad character evidence.  As will be explained below, different tests relating to admissibility apply depending on whether the evidence is led by the Crown or by a co-accused. 

[70]          Character evidence, though relevant, is always inherently prejudicial.  Its relevance comes from the view that "[t]he tendency or disposition of a person to do a certain act is relevant to indicate the probability of his doing or not doing the act":  R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff'd [1977] 2 S.C.R. 824.  The inherent prejudice flows from the natural human tendency to judge a person's actions on the basis of character. 

[71]          The concern over prejudice is two-fold.  First, a jury might "infer guilt from general disposition or propensity": R. v. Handy, [2002] 2 S.C.R. 908, at para. 139.  This error is commonly referred to as "moral prejudice".   Second, there is a distracting nature to character evidence, creating what has been called a "reasoning prejudice".  Rather than focusing the trial on whether the Crown has proven the charges, propensity evidence risks distracting a jury with details of other criminal conduct:  Handy at paras. 144-46; see also R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.) at paras. 99-102.

[72]          Because of this high and inherent prejudice, evidence of the bad character of the accused is presumptively inadmissible when led by the Crown.  In Handy, at para. 36, Binnie J., citing several recent cases, summarized the position of the Supreme Court with respect to this evidence, saying:  "[t]he exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial."

[73]          The situation is different, however, when one accused seeks to lead evidence of the bad character of a co-accused, in cases where what is known as a "cut-throat" defence is raised by one of the accused against the other.  This is where two accused are jointly tried, each with equal opportunity to commit the crime and each alleging that the other committed it:  see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 72.  In this scenario, one accused may be permitted to lead propensity evidence against the other accused on the basis of his or her right to make full answer and defence, even though the Crown would not be permitted to lead such evidence:  see Suzack at para. 111.

[74]          However, in Suzack, at para. 116, Doherty J.A. cautions that even in cases where the cut-throat defence is in play, care must be taken not to "discard a rule that is so fundamental to an accused's right to a fair trial", namely, the rule that the Crown cannot make its case by showing the accused's propensity to commit the crime with which he or she is charged.

[75]          In Pollock, at para. 106, Rosenberg J.A. spoke of the "very grave risk of prejudice" associated with the admission of bad character evidence, as follows:

… [S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered.  In my view, in a joint trial, counsel's mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused.  There must be some evidentiary foundation to support this assertion.

[76]          The effect of the direction from these authorities is this.  Propensity evidence, while inherently prejudicial, may be led by a co-accused so long as the prejudicial effect of that evidence does not clearly outweigh its probative value.  This is a lower threshold of admissibility than is applied to character evidence led by the Crown, where the prejudicial effect need only outweigh the probative value for the evidence to be rendered inadmissible:  see Pollock at paras. 110, 123.

[77]          Despite these differing standards, the concern over prejudice is the same.  When bad character evidence becomes potentially admissible, the trial judge, after going through the analysis mandated by Pollock, has the discretion whether to admit the evidence.  Its admission is not automatic and the trial judge must engage in a careful and explicit balancing of probative value and prejudicial effect.

[78]          If the trial judge concludes the evidence should be admitted, the jury must be carefully and clearly instructed as to how they can use the evidence in considering the case of the accused who adduces it, but not in considering the case of the co-accused:  see Suzack at paras. 127-28. The jury must be told in no uncertain terms that the propensity evidence may be used to raise a reasonable doubt as to the guilt of the accused who leads the evidence, but cannot be used in any way to support the Crown's case against the co-accused.  Furthermore, Sharpe J.A., in R. v. Diu (2000), 49 O.R. (3d) 40, makes it clear that the trial judge has an additional obligation to instruct the jury not only as to the use they cannot make of propensity evidence but also the use that they can make of it.  He refers to these as positive and negative instructions.  A failure to give either prejudices the accused against whom the evidence was led:  see Diu at paras. 140-42.
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