Bad Character Evidence

Bad character evidence is not permissible to prove an accused is a bad person and accordingly guilty.  Great care must be used when evidence that could be of bad character is put forth.  Today's decision in R. v. Precup, 2013 ONCA 411 deals with such evidence in the form of chronic schizophrenia and orders a new trial:

[49]       As reflected in the trial judge's promise to provide a cautionary instruction, the nature of the Prior Incidents called out for a clear warning to the jury as to what uses the evidence of bad character could and could not be put.  As the Supreme Court emphasized in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 141, propensity evidence is of a "poisonous nature", requiring "a high awareness of its potentially prejudicial effect".

[50]       However, the charge does not identify the Prior Incidents as hearsay or mention evidence of bad character in any way.  Nor does the charge contain any caution to the jury that it could not rely on the Prior Incidents for propensity reasoning.  The jury was not told that the facts contained in the appellant's medical records concerning the Prior Incidents were admissible only for the limited purpose of attempting to undermine the extent of Dr. Kunjukrishnan's knowledge of the appellant and, hence, his opinion about the nature and effect of the appellant's mental illness, by illustrating that his opinion had been cast too narrowly, or was based on incomplete information.

[51]       Second, the instructions provided to the jury, quoted above, were directed at the facts relied upon by Dr. Kunjukrishnan to support his opinion of the appellant's proper diagnosis – chronic schizophrenia with persisting negative symptoms – and his testimony that this mental illness may have affected the appellant's state of mind and, hence, his criminal culpability for the collision.  In other words, the instructions provided by the trial judge were directed at hearsay or "foundational facts" relied on by Dr. Kunjukrishnan in forming his opinion.   

[52]       The facts concerning the Prior Incidents were not relied on by Dr. Kunjukrishnan and formed no part of the foundation for his opinion.  They were merely unproven facts asserted by the Crown to undercut Dr. Kunjukrishnan's opinion and the weight to be accorded to it by the jury.  Nowhere in the charge was the jury told that unproven facts relied on by the Crown to attack Dr. Kunjukrishnan's opinion, like unproven facts relied on by Dr. Kunjukrishnan to form his opinion, also constituted hearsay that could not be treated as evidence. 

[53]       In my view, in the absence of a limiting instruction and based on the charge as a whole, it cannot be said that the jury necessarily would have understood the limited permissible use of the information and evidence regarding the Prior Incidents.  To the contrary, absent such an instruction, there was a realistic concern, as expressed by defence counsel prior to the charge, that the jury might place evidential value on the Prior Incidents.

[54]       The Crown points out that defence counsel did not object on this basis, following the charge.  The Crown also submits that a specific instruction concerning the Prior Incidents could only have worked to the appellant's disadvantage since an itemization of the Prior Incidents would have reminded the jury of the damaging nature of the entries in the appellant's medical records regarding his apparent character and past violent behaviours.

[55]       While a relevant factor, defence counsel's failure to renew his objection after the charge does not cure the trial judge's non-direction.  It is well established that the failure to object to parts of a jury charge is not dispositive of a subsequent challenge to the propriety of the charge: see e.g. R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 37–38.

[56]       I also do not accept that an itemization of the Prior Incidents was appropriate or necessary in order to provide an adequate jury instruction concerning the limited permissible use of evidence of bad character, the hearsay nature of the information regarding the Prior Incidents, and the dangers of prohibited propensity reasoning.

[57]       The appropriate jury instruction was a simple warning that the Crown was in no better position than the defence when it came to the use of hearsay.  In this case, as with the hearsay relied on by Dr. Kunjukrishnan, the unproven facts in the appellant's medical records concerning the Prior Incidents could not be relied upon by the jury for the truth of their contents.  Nor could the Prior Incidents be used by the jury to reason that the appellant's suggested character or past conduct made his commission of the charged crimes more likely.  The absence of a limiting instruction in this regard effectively left the jury with no guidance on "troubling evidence of bad character": R. v. Philip, 2010 ABCA 79, 477 A.R. 380, at paras. 7–8.