Monday, July 23, 2012

Court must weigh prejudicial effect in considering potentially bad character evidence

R. v. VanEindhoven, 2012 NUCA 5 deals with the requirement that prejudicial effect be considered where potential bad character evidence is considered:

[25]  We agree with the appellant's submission that the trial judge failed to identify or acknowledge the additional prejudicial effect of this evidence. The principled approach in Handy mandates reasoning that expressly assesses prejudicial effect. The disputed records merely amounted to additional evidence of "bad character" and, in our view, were inadmissible under Handy. See also R v B(CR),1990 CanLII 142 (SCC), [1990] 1 SCR 717, [1990] SC J No 31.



[26]  We also agree with the appellant that the trial judge never engaged in the weighing process mandated by Handy. While he did state that the evidence was "probative" to the issues of hostile intent, deliberate act, and context, the degree to which it was probative was never compared to its substantial prejudice. In our view, that is also an error that warrants appellate interference. See also R v Villeda,2010 ABCA 351 (CanLII), 2010 ABCA 351, 493 AR 279 at para. 26 [Villeda], in which the Court of Appeal stated:


      The trial judge did not expressly weigh the probative value of the evidence against its prejudicial effect. The Crown submits that this weighing is implicit in her conclusion that she was not inferring from the evidence that the appellant was a person whose character was such that he was more likely to have committed the offence. In our view, however, the trial judge's statement to this effect is merely a restatement of the general exclusionary rule - that character evidence cannot be used simply to create 'moral prejudice.' It does not amount to a balancing of probative value against prejudicial effect.


[27]  In a nutshell, as the Court made clear in Villeda, a statement simply stating a purpose for the admission of the evidence does not by itself satisfy the obligation of a trial judge to determine not only the relevance of the evidence of bad character to an issue at trial but also to expressly weigh the probative value against its prejudicial effect "simply stating a purpose for the admission of the evidence of prior alleged assaults does not, by itself, provide justification for its admission. … The trial judge's failure to consider and apply the correct legal test is an error to which principles of deference do not apply."(Villeda at paras. 27 and 30)


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