[Vol. 18
Character Evidence in Civil Cases
John Sopinka *
Introduction
In the decisions that we make about the conduct of others in
our daily lives, character is perhaps the most important single
factor. Men act and react and go about their every day business
on their expectations of what others will do. It is common sense
when asked to judge a man’s conduct on a particular occasion
to enquire how he behaved on other occasions. Character is simply
a compendious summary of a person’s past actions, good and
bad. The conclusion may be expressed in terms of moral and mental
qualities, but these are in turn determined only by what a person
says and does. The law is principally concerned with the character
of a person in the estimation of those who know him, which is his
reputation.
In the early history of the law, character was the major determi-
nant of a person’s fate at the hands of the law. The following is
an account of the role of character in an 11th century trial.
The opinion of neighbours always prevailed, and a trial was a test of
the question was, ‘can the oath of the defendant be relied
character:
upon?’. Notoriety in England, as in many primitive societies, was for
long as good a reason for condemning a man as proof of a particular
crime: a man ‘regarded with suspicion by all the people’, said Canute,
was to be put under surety by the king’s reeve to answer any charges
brought against him, and if he had no surety he was to be slain and to
lie in unconsecrated ground.1
When the ordeal was the favourite mode of trial, character and
reputation became especially important.
The more notorious a criminal, the greater was his ordeal. He must
then he holds the hot
fast, go to Mass and swear to his innocence;
iron (if the burn festers, he is guilty); or is lowered into water (he is
guilty if he floats, for the water rejects him); or, if he is a clerk, swallows
the sacred morsel which has been adjured to choke the guilty man.2
While it would be difficult to argue from a common sense point
of view that character evidence is not logically relevant, the danger
* Of the Ontario Bar, Toronto.
1 Harding, A Social History of English Law, (Penguin 1966), at p. 22.
2 Ibid., at p. 24.
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CHARACTER EVIDENCE IN CIVIL CASES
of its illogical use is considerable. The logical function of character
evidence may be shown by the following illustration. If a man
is accused of stealing, his reputation as a thief logically weighs
heavily against him. There is a strong tendency, however, that
character evidence will produce a dislike or hatred for the party
against whom the evidence is tendered which may result in an
adverse finding to vindicate the trier’s feelings and in disregard
of culpability.
The impact of the use of character evidence and its potentially
prejudicial operation are illustrated in Camus’ novel The Outsider.
Meursault, a young French Algerian, was being tried for the murder
of an Arab, whom he was alleged to have shot on the beach outside
Algiers. Coincidentally, the shooting took place a few days after
his mother’s death in an old age home. The court, as was the
custom, saw fit to allow wide-ranging character evidence to be
admitted. The warden and gatekeeper of the home gave evidence
and Meursault recounts this court room scene:
To another question he [the warden] replied that on the day of the
funeral he was somewhat surprised by my calmness. Asked to explain
what he meant by ‘my calmness’, the Warden lowered his eyes and stared
at his shoes for a moment. Then he explained that I hadn’t wanted
to see Mother’s body, or shed a single tear, and that I’d left immediately
the funeral ended, without lingering at her grave. Another thing had
surprised him. One of the undertaker’s men told him that I didn’t know
my mother’s age…
The prosecutor was then asked if he had any questions to put, and
he answered loudly: ‘Certainly not! I have all I want.’ His tone and
the look of triumph on his face, as he glanced at me, were so marked
that I felt as I hadn’t felt for ages. I had a foolish desire to burst into
tears. For the first time I’d realized how all these people loathed me.
After asking the jury and my lawyer if they had any questions, the
judge heard the door-keeper’s evidence. On stepping into the box the
man threw a glance at me, then looked away. Replying to questions,
he said that I’d declined to see Mother’s body, I’d smoked cigarettes
and slept, and drunk cafr au lait. It was then I felt a sort of wave of
indignation spreading through the courtroom, and for the first time I
understood that I was guilty.3
The character evidence in this illustration is quite unrelated
to the issue but the prejudicial effect is overwhelming. It was
perhaps because of this possible prejudicial effect on juries that
for a period of time in English legal history the use of character
evidence was in disrepute, epitomized by the abolition of its use
in criminal cases.4
3 Camus, The Outsider, (Penguin Modern Classics, 1971), at pp. 90-91.
41 Wigmore (3rd ed., 1940), at p. 451.
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There has been a gradual erosion of this ultra-protective attitude.
It is the purpose of this article to examine the extent to which
this erosion has taken place with respect to civil cases. In this
respect, character is sought to be introduced into evidence in two
distinguishable ways.
The Use of Character Evidence to Prove a Fact in Issue.
The first is where it is tendered in proof or disproof of some
other issue apart from character, or to show the doing or not
doing of an act by the person against whom the evidence is tendered.
The second is where, under the law and pleadings in the action it
is one of the issues, or the issue to be resolved. For convenience
the first kind of evidence may be referred to as secondary evidence
of character and the second primary evidence of character.
In the introduction some illustrations were given of the use
of secondary character evidence. In respect to the use of character
evidence as secondary evidence to prove some other fact in issue
the reaction against its use resulted in its total prohibition subject
to some limited exceptions. The modem rationale for its exclusion
was enunciated in the Attorney General v. Radlo ffr In the course
of his judgment Martin, B. made the following statement:
In criminal cases evidence of the good character of the accused is most
properly and with good reason admissible in evidence, because there
is a fair and just presumption that a person of good character would not
commit a crime; but in civil cases such evidence is with equal good
reason not admitted, because no presumption would fairly arise, in the
very great proportion of such cases, from the good character of the
defendant, that he did not commit the breach of contract or of civil
duty alleged against him.6
While the above statement deals with the introduction of
evidence of good character the same prohibition applies with respect
to evidence of bad character 7 unless the evidence meets the rigid
standards relating to the admission of evidence of similar acts.
In criminal cases the exception referred to by Martin, B. was
introduced at the beginning of the 19th century.” The rationale for
allowing this evidence in criminal cases was clearly based on its
relevance. Thus in R. v. Rowton, Willes, J. said:
5 (1854), 10 Ex. 84; 23 L.J. Ex. 240; 156 E.R. 366.
6 156 E.R. 366, at p. 371.
7 Laird v. Taxicabs Limited (1914), 6 O.W.N. 505 (C.A.); Sinclair v. Ruddell
(1906), 3 W.L.R. 532; 16 Man. R. 53 (CA.).
8 I Wigmore (3rd ed., 1940), at p. 451.
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CHARACTER EVIDENCE IN CIVIL CASES
Such evidence is admissible, because it renders it less probable that
what the prosecution has averred is true. It is strictly relevant to the
issue;.. P
If the logical relevance of the evidence were the test of admissi-
bility it would be difficult to rationalize its exclusion in civil cases
and its admission in criminal cases. In tort actions such as assault,
deceit and negligence evidence of good character on the part of
the defendant would appear to be as relevant as the evidence of good
character of the accused in a criminal case.
It is submitted that, while the courts appear to exclude character
evidence in civil cases on the basis of irrelevance, the real rationale
is the policy to restrain civil proceedings within manageable limits
and to prevent unfairness to civil litigants who cannot be expected,
without previous notice, to be prepared to protect themselves against
imputations which may range over their whole career.’0
There are very few reported cases in which character evidence
has been sought to be introduced by the examination of witnesses
in chief.”- The vast majority of cases which deal with the use of
character evidence as secondary evidence are cases where such
evidence is attempted to be introduced by way of cross-examination.
Here character evidence is admitted as part of a broader rule.
On cross-examination, subject to the discretion of the trial judge
to disallow any question which is vexatious or oppressive’ 2 a witness
can be asked literally anything as a test of his credibility.’3 This
broader rule is subject to the qualification, however, that if the
question is irrelevant to the facts in issue, but is asked purely for
the purpose of testing credibility, the cross-examiner is bound by
the answer. He cannot lead evidence to contradict the witness.’ 4
In turn the rule precluding rebuttal evidence is subject to a
number of exceptions.’ 5 The generally recognized exceptions in
9 (1865), L. & C. 520; 169 E.R. 1497, at p. 1506.
“DEdwards et al. v. The Ottawa River Navigation Company (1876), 39
U.C.Q.B. 264; 13 HaIsbury (2nd ed.) 572.
” In A.-G. v. Bowman (1791), 2 Bos. & P. 532 a defendant to an information
for keeping false weights was precluded from calling a witness as to good
character on the ground that the proceedings although criminal in form
were civil.
12 Brownwell v. Brownwell (1910), 42 S.C.R. 368.
13 Geddie v. Rink, [1935] 1 W.W.R. 87 (Sask. C.A.).
14Id., Hickey v. Fitzgerald (1877), 41 U.C.Q.B. 303 (C.A.); S. v. S., [1954]
2 D.L.R. 765 (Man. CA.).
(3rd ed. 1967), at pp. 219-222.
‘5 Phipson on Evidence (11th ed. 1970), at pp. 660-661, paras. 1554-1555; Cross
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which the cross-examiner may introduce contradictory evidence
are as follows:
a. to prove a charge of bias or partiality in favour of the opposite party;
b. to prove that the witness has previously been convicted of a criminal
offence;
c. medical evidence to prove that by reason of the physical or mental
condition another witness is incapable or unlikely to tell the truth;
d. independent evidence that an adverse witness has a general reputation
for untruthfulness and that the witness testifying to such reputation
would not believe the impugned witness on his oath;
e. where the proper foundation has been laid, a previous inconsistent
statement may be proved to contradict a witness.
The rule as to cross-examination with respect to collateral
matters applies to parties as well as ordinary witnesses.”0
The consequences of character evidence being classified as
irrelevant are particularly felt in the application of the rule as
to cross-examination on collateral matters. By reason of the ration-
ale referred to above for excluding character evidence in civil
cases, this evidence is treated as irrelevant. Subject to the above
exceptions a witness’ character, therefore, cannot be proved if he
denies on cross-examination the imputations put to him.’ 7
While in many cases character evidence has little probative
value,’ by labelling all secondary character evidence as irrelevant
much evidence which would otherwise serve the ends of justice
is often excluded. Thus in an action of fraud or deceit unless the
plaintiff is able to convince the court that the evidence constitutes
similar acts he is precluded from adducing evidence as to the
defendant’s previous deceitful conduct. The defendant has only to
deny the imputation in cross-examination.”
If the courts applied what it is submitted is the proper rationale
for excluding such evidence 20 more exceptions would have been
judicially developed. With respect to the objection that such evi-
dence opens up a new and lengthy inquiry, an exception could
16Hickey v. Fitzgerald, op. cit., n. 14.
17Harris v. Tippett (1811), 2 Camp 637; 170 E.R. 1277.
1s S. v. S., op. cit., n. 14 is a classical example. The case involved a property
dispute between husband and wife. Counsel for the wife cross-examined
the wife as to her adulterous association with other men. The husband’s
rebuttal evidence was rejected as collateral.
19Larson v. Boyd (1919), 58 S.C.R. 275.
2o Supra, at p. 249.
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CHARACTER EVIDENCE IN CIVIL CASES
logically be made if the evidence were shown to bge easily proved,
and when proved, indisputable.21
The objection that such evidence operates unfairly to the
defendant could be overcome by the exercise of a sound judicial
discretion to exclude evidence where it is oppressive or vexatious.
The four exceptions 22 which appear to have evolved in an
anomalous manner provide little scope for the introduction of
character evidence.
a. Bias or Partiality
Under this exception it is possible to introduce specific acts
of bad character such as for instance that the witness is a kept
mistress of the party calling her23 or that a witness for the defendant
attempted to induce a stranger to the action to break his contract
with the plaintiff by deceitful means. 24 The introduction of such
evidence is predicated on a denial from the witness that he is
biased or partial.2 5
b. Previous Convictions
This is a statutory exception to the rule that answers on collateral
matters are conclusive. It has been held in Ontario that the use
of the word “crime” in the Ontario Evidence Act 26 restricts such
questions to offences created by Federal Legislation. 27 While this
exception allows a specific act tending to show bad character to
be introduced it is a tactic that is seldom used and is unpopular
with trial judges in civil cases.
21 In Goody v. Odhams Press, Ltd., [1966] 3 All E.R. 369
(C.A.). This
reasoning moved the Court of Appeal to permit evidence of specific acts
of misconduct to be introduced in a libel action as an exception to the
general rule that character evidence in mitigation of damages must be of
general bad reputation.
22Supra, at p. 251.
23 Thomas v. David, 7 C.P. 350.
24 General Films v. McElroy, [1939] 4 D.L.R. 543 (Sask. C.A.).
251d.
26 R.S.O. 1970, c. 151, s. 23.
27 Street v. Guelph, [1964] 2 O.R. 421;
Justice); 45 D.L.R. (2d) 652.
[1965] 2 C.C.C. 215 (High Ct. of
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c. Previous Inconsistent Statements
While this is stated to be an exception to the rule that a cross-
examiner is bound by answers to collateral matters28 it is not
universally accepted as such.29 It is submitted that the statutory
provision permitting cross-examination on a previous inconsistent
statement does not apply where the witness’ testimony does not
relate to a fact in issue but to collateral matters. The statutory
provision is merely declaratory of the common law8 0 and applies
where the present testimony and previous inconsistent statement
relate to the matter in question. 1
d. Physical or Mental Condition of Untruthfulness
Under this exception medical evidence is admissible to show
that a witness suffers from some disease, or defect or abnormality
of mind that effects his credibility. Such evidence is not confined
to general opinion of the unreliability of the witness, but evidence
may be given of all matters necessary to show not only the foun-
dation of and reason for the diagnosis, but also the extent to which
the credibility of the witness is affected.2 This rule does not
appear to operate in reverse so as to admit similar evidence to
show that the witness is credible.3 3
e. Evidence of Reputation for Untruthfulness
While this is treated as an exception to the rule, the case which
appears to have originated the practice Mawson v. Heartsink84
28 Cross, op. cit., n. 15, at p. 219.
29 Phipson, op. cit., n. 15.
30 Crowley v. Page (1837), 7 C. & P. 789; 173 E.R. 344.
31 The Ontario Evidence Act, R.S.O. 1970, c. 151, s. 22, is typical and it
provides: If a witness upon cross-examination as to a former statement
made by him relative to the matter in question and inconsistent with his
present testimony does not distinctly admit that he did make such statement,
proof may be given that he did in fact make it, but before such proof is
given the circumstances of the supposed statement sufficient to designate
the particular occasion shall be mentioned to the witness, and he shall
be asked whether or not he did make such statement. R.S.O. 1960, c. 125, s. 22.
[1965] 1
32 Toohey v. Metropolitan Police Commissioner, [1965] A.C. 595;
All E.R. 506.
33R. v. Burkart, [1965] 3 C.C.C. 210 (Sask. C.A.).
344 Esp. 103.
No. 2]
CHARACTER EVIDENCE IN CIVIL CASES
does not indicate that it is a condition precedent to the introduction
of this contradictory evidence that the subject of the contradictory
evidence be put to the witness.
The case was brought on an assumpsit against the defendants,
who pleaded bankruptcy, and produced their certificates. One
Stanley Leathes was called by the plaintiff to impeach the certifi-
cates on the grounds that they were improperly obtained. The
defendants then called several witnesses to impeach the credit of
Leathes. The chief clerk of the Magistrates Court at Bow Street
attempted to testify that Leathes had been before the Justices
and from what transpired he (the clerk) would be unwilling to
believe Leathes. Lord Ellenborough rejected this evidence as well
as evidence of Leathes’ general character gained as a result of
particular enquiries made by the clerk. Questions, however, were
allowed in this form.
Q. Have you the means of knowing what the general character
of this witness was?
Q. And from such knowledge of his general character would you
believe him on his oath?
It was held that in cross-examination
the witness could be
asked as to his means of knowing Leathes’ character. In reply
to this question presumably specific instances of bad conduct could
be given.35 Of all the so called exceptions to the rule this is the
only one that allows character evidence properly so called to be
adduced. While the other exceptions permit specific acts of conduct
to be introduced, evidence of a witness’ reputation is not allowed.
A witness whose reputation for veracity has been impugned may
have his credibility rehabilitated in several ways. Evidence may be
adduced that the impeached witness is worthy of credit. The better
view is that such general evidence is not admissible where merely
particular discrediting facts have been elicited in cross-examination.36
In cases in which the technique in Mawson v. Heartsink has been
employed, the party producing the witness, whose credit has been
impeached, can in turn lead independent general evidence that
the impeaching witness is unworthy of credit. The exercise how-
ever cannot be repeated 37 Another rehabilitating device, which is
a curious exception to the hearsay rule, permits evidence of previous
consistent extra-judicial statements made by the witness to be
35 Phipson, op. cit., n. 15, at p. 661, para. 1555.
36 Ibid., at p. 662, para. 1556.
37R. v. Whelan, 14 Cox 595.
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adduced in evidence when the witness’ testimony at trial is attacked
on the basis that it is a concoction 8
The Use of Character Evidence as a Fact in Issue.
Character may be directly in issue either on the question of
liability or the quantum of damages. The causes of action in which
this occurs are:
a. Defamation;
b. Breach of promise to marry;
c. Seduction;
d. Actions in which damages for adultery are claimed.
a. Defamation
In an action for libel or slander, although the good character
of the plaintiff is presumed at the outset, he may, notwithstanding,
adduce evidence through witnesses other than himself as to his
reputation.3 9 The types of question which the character witnesses
may answer are:
‘What are you? How long have you known him? Have you known him
well? Have you had an opportunity of observing his conduct? What
character has he borne during that time for honesty, morality or loyalty
[according to the nature of the case]? As far as you know, has he
deserved that character?’ 40
A character witness called by the plaintiff cannot however be
asked questions in examination-in-chief about particular facts to
illustrate the plaintiff’s good behaviour. In cross-examination how-
ever the witness may be asked about particular facts known to
him in order to test the grounds of his belief.41
The defendant, whether he pleads justification or not, may in
mitigation of damages, adduce evidence of general bad character
directed to that sector of the plaintiff’s character which is relevant 2
The defendant may not, however, adduce in the examination of
his witnesses-in-chief particular instances of bad character, but,
as in the case of the plaintiff, the defendant’s witnesses may be
38 Welstead v. Brown, [1952] 1 S.C.R. 3, 19.
39Plato Films, Ltd. and others v. Speidel, [1961] 1 All E.R. 876 (H.L.),
at p. 889.
40 Id.
41Id.
42 Ibid., at p. 890.
No. 2]
CHARACTER EVIDENCE IN CIVIL CASES
cross-examined as to specific instances to test their general evi-
dence4 3
If an attempt is made to circumvent this rule by cross-examining
the plaintiff as to specific instances of misconduct under the guise
of credibility, the trial judge, in the exercise of his discretion,
should disallow such questions.44 The defendant can, of course, in
support of a plea of justification, adduce evidence of specific acts
to prove that the alleged defamatory statement is true.
Prior to the decision in Scott v. Sampson 45 the defendant was
allowed, in mitigation of damages, to adduce evidence that, prior
to the defamatory statement complained of, there were rumors to
the same effect as the statement complained of.46 This evidence
was admitted on the theory that, if people were saying these things
about the plaintiff in any event, he had received little injury.47 In
Scott v. Sampson, however, it was finally decided that evidence
of such rumors was inadmissible. This decision was affirmed by
the House of Lords in Plato Films, Ltd. and others v. Speidel. Lord
Denning buried rumour once and for all with the following eulogy:
Rumour is a lying jade, begotten by gossip out of hearsay, and is not
fit to be admitted to audience in a court of law.48
If the defendant pleads qualified privilege but not justification
and the plaintiff replies malice, the defendant may be permitted
to adduce evidence of specific acts, tending to prove the truth
of the defamatory statement, in order to show bona fides rebutting
the imputation of malice.49
In Goody v. Odhams Press, Ltd.,50 Lord Denning who was
Master of the Rolls was faced with his previous decision in Plato
Films, Ltd. v. Speidel and the following fact situation:
A newspaper owned by the defendants published a story contain-
ing many references to the plaintiff in connection with the great
mail bag robbery. The story alleged that the plaintiff had been in
prison for thirty years for his part in the mail raid. The defendants
43M., Scott v. Sampson (1882), 8 Q.B.D. 491; Associated Newspapers, Ltd.
and others v. Dingle, [1964] A.C. 371.
44 Plato Films, Ltd. and others v. Speidel, op. cit., n. 39, at p. 892.
4 5 Op. cit., n. 43.
4 0 Leicester v. Walter 2 Camp. 251; 170 E.R. 1146.
47 Id.
48 Op. cit., n. 39, at p. 888.
49 McKergow v. Comstoclk (1906), 11 O.L.R. 637 (Div. Ct.).
Go [1966] 3 All E.R. 369 (C.A.).
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at first pleaded justification, but in order to establish this defence
the defendants would have been required to prove that the plaintiff
was in fact one of the robbers. It would not have been sufficient to
prove his conviction by reason of the rule in Hollington v. F.
Hewthorn & Co., Ltd.0 ‘ The defendants then amended their defence
to plead partial justification, viz., that the plaintiff was in prison
and had been convicted. The defendants further pleaded by way
of particulars eight previous convictions of the plaintiff, in miti-
gation of damages. The case came before the court of appeal on
the question whether the amended plea was proper. Notwithstanding
the previous decision in Plato Films, Ltd. v. Speidel, that the
defendant in a libel action cannot adduce evidence as to specific
instances of misconduct the plea was allowed to stand. Lord Denning
distinguished his previous decision as follows:
I think that previous convictions are admissible. They stand in a class
by themselves. They are the raw material on which bad reputation
is built up. They have taken place in open court. They are matters of
public knowledge. They are accepted by people generally as giving the
best guide to his reputation and standing. They must of course be
relevant, in this sense, that they must be convictions in the relevant
sector of his life and have taken place within a relevant period such
as to affect his current reputation; but being relevant, they are admissible.
They are very different from previous instances of misconduct, for
those have not been tried out or resulted in convictions or come
before a court of law. To introduce those might lead to endless disputes.
Whereas previous convictions are virtually indisputable. 2
b. Breach of promise to marry
In Jones v. James ” the defendant pleaded a general charge of
immorality and not merely specific acts of misconduct against the
plaintiff. It was held that the plaintiff was entitled to give general
evidence of good character for modesty and propriety of demeanor.
But for a general allegation of immorality, it appears such evidence
cannot be given by the plaintiff in the first instance, presumably
on the theory that the plaintiff’s character is not in issue unless
the defendant attacks it. The defendant on the other hand can
adduce general evidence of bad character and specific acts of
immorality. 4
51 [1943] 2 All E.R. 35 (CA.).
5 2 Op. cit., n. 50, at pp. 372-373.
5 18 L.T. 243.
54 Foulkes v. Selway (1801), 3 Esp. 236; McGregor v. McArthur (1856),
5 U.C.C.P. 493.
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CHARACTER EVIDENCE IN CIVIL CASES
c. Seduction
The defendant may adduce evidence of general reputation for
immorality and of specific acts on the part of the person seduced,
committed prior, but not subsequent to the act complained of.5
The reason is that subsequent acts may have been brought about
by the defendant’s own misconduct. 6 Evidence that the plaintiff’s
father had illicit relations with other women was rejected ” although
this would appear to be relevant to his loss. The blow to the fatherly
pride must surely be lessened if he himself is a seducer.58
d. Actions for damages for adultery
In actions for criminal conversation, alienation of affections
and enticement, the wife’s general moral character and previous
acts of adultery (not subsequent acts for the same reason as in
seduction cases) may be proved by the defendant. 9 The defendant
may also prove that the husband was a philanderer as this depreci-
ates his loss. 0
Conclusion
It has perhaps been demonstrated that the law of evidence in
civil cases is somewhat of a hodgepodge. There does not appear
to be a consistent logical thread connecting the various rules.
Some evidence is excluded which appears to be logically relevant.
This over-zealousness on the part of the courts to protect character
is perhaps the hallmark of an advanced civilization. One must be
free to indulge his idiosyncrasies, oddities and peculiar habits
without fear of having them exposed when seeking civil redress.
Failure to cry at one’s mother’s funeral may not live up to the
expectations of those who sit in judgment, but it should not be
a basis for attracting liability.
65 McCready v. Grundy (1876), 39 U.C.Q.B. 316; Elsam v. Faucett, 2 Esp.
562; Winter v. Henn, 4 C. & P. 494.
56 Phipson on Evidence (11th ed. 1970), at pp. 238-9, para. 541.
57 Grainger v. Hamilton (1902), 1 O.W.R. 819 (Div. Ct.).
5SBromley v. Wallace, 4 Esp. 237; 170 E.R. 704.
59Id.
S0Id.
