Case information

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Criminal law - Evidence - Admissibility - Bad character evidence of victim of offence - Whether evidence admissible - What is the standard for admissibility of such evidence?

The appellant was convicted of second degree murder. At trial, he admitted to shooting the deceased, but claimed he acted in self-defence, had been provoked, and that because of the provocation, self-defence and his extreme intoxication due to crack cocaine, he did not have the requisite intent for murder. The central issue with respect to the appellant’s self-defence claim was whether the deceased was armed at the time of the incident. The appellant claimed the deceased had a gun, but no other evidence supported that assertion. Accordingly, the appellant sought to introduce evidence of the deceased’s convictions for firearms-related offences to establish that the deceased was prone to violence which made it more than likely that he was in possession of a firearm at the relevant time, and thus, was more likely to have been the aggressor. This, in turn, would give an air of reality to the appellant’s defences of self-defence and provocation. The trial judge refused to admit that evidence. The appellant appealed his conviction and argued, among other things, that the evidence of the deceased’s convictions should not have been excluded. The Court of Appeal dismissed the appeal. Rosenberg J.A., dissenting, would have allowed the appeal and ordered a new trial on the basis that the evidence in question had probative value and its prejudicial effect did not substantially outweigh that probative value. In Rosenberg J.A.’s view, the evidence, when considered with other evidence, could have persuaded the jury that the deceased was armed and had reached for his gun when he was shot, leaving the jury with a reasonable doubt.