The Role Bad Character Evidence Played in Ordering New Trial

The Role Bad Character Evidence Played in Ordering New Trial

Jarvis v. Oliveira, 2024 ONCA 200

Nick Todorovic, Lawyer, Mandeep Tamber, Student-At-Law

1. Introduction

On the night of August 30, 2014, 16-year-old Jasmine Jarvis was running across the street after exiting a taxicab with her friend. They were fleeing the taxi fare. They were both drunk. As they ran across the street, a car crashed into Jasmine. Jasmine sustained a severe traumatic brain injury and multiple fractures. Jasmine sued the driver and owner of the car for her catastrophic injuries.

At trial, damages were settled, and the only issue was liability and contributory negligence. A five-day jury trial took place in April 2022 which resulted in a verdict of no liability against the driver and owner of the vehicle.

Jasmine appealed the decision based on an unfair trial, contending that the trial Judge admitted irrelevant and prejudicial bad character evidence about her running from the taxi fare moments before being hit. The appeal was granted on the manner in which the trial Judge dealt with the prejudicial taxi fare evidence. The trial Judge gave an unclear ruling that the defendants took advantage over the course of the trial. The trial Judge’s instructions to the jury did not cure the prejudice against Jasmine and a new trial was ordered.

2. Pre-trial motion on Bad Character Evidence

Plaintiffs’ counsel brought three pre-trial motions: use of demonstrative evidence during openings, the order of presentation, and bad character evidence. The trial Judge ruled on the first two motions but did not rule on the motion of bad character evidence.

The motion for bad character evidence became the focus of this appeal. Both parties made submissions on whether the jury could hear the evidence that Jasmine attempted to flee taxi fare moments before the crash. The trial Judge made only the following statement on the issue:

Well, to the extent that there’s a potential problem with the admissibility of the evidence, I’m sure everyone knows what to do, or not to do. So, I’ll just leave that.

This issue was left unresolved, and problems quickly emerged with defendants’ counsel’ use of that prejudicial evidence throughout the trial.

3. The Trial, Address to the Jury, and Jury Charge  

During the openings, defendants’ counsel hinted at the fact that Jasmine was fleeing the taxi fare and brought up that plaintiffs’ counsel was omitting a key fact from their opening. At this time, the trial Judge made no ruling on the use of bad character evidence. Further arguments were made on that issue to the trial Judge where it was argued that the prejudicial impact of admitting this evidence far outweighed its probative value. Defendants’ counsel submitted that it was only part of the narrative and that they did not intend to besmirch Jasmine’s character. At the conclusion of those submissions, the trial Judge did not give a definitive ruling on the admissibility of this evidence.

During the defendants’ cross-examination of the plaintiffs’ forensic engineer, Scott Walters, Mr. Walters read out a portion of the police report to the jury which stated that she fled the taxi without paying. The officer was not called as a witness and the police report was not in evidence. Plaintiffs’ counsel raised concerns about this being read to the jury, however, the trial Judge was focused on hearsay evidence while plaintiffs’ counsel was focused on bad character evidence. There was a disconnect. At this time, the issue of the openings was also brought up because plaintiffs’ counsel did not want to appear to the jury that they were attempting to be dishonest by not bringing up the taxi fare issue during their opening submissions. Plaintiffs’ counsel asked for cautionary instructions on the issue which never happened.

The issue arose again during the examination-in-chief of the defendants’ forensic engineer where they showed the same police report on a projector to the jury which stated “P1 WAS IN THE TAXI ATTEMPTS TO FLEE THE TAXI FARE”. At this time, the trial Judge intervened and asked the diagram to be removed from the projector and retired the jury. The trial Judge was again concerned about hearsay evidence. What further complicated issues was that the defendants provided the police report to the jury in a package of documents. This document was available to the jury when they later deliberated. When the jury returned, the trial Judge spoke to the jury about hearsay evidence but did not caution the jury about the use of the evidence on the projector. The trial Judge did not bring up bad character evidence at that time.

During Jasmine’s testimony, she stated that she had no memory of the crash or the month before the crash as a result of the severe traumatic brain injury. Defendants’ counsel never cross-examined on the issue of fleeing the taxi fare.

During closing arguments to the jury, defendants’ counsel attacked Jasmine about fleeing the taxi fare five times, calling her a cheat and  alluding to her acting like a criminal.

During the pre-charge, there were submissions from defendants’ counsel about not besmirching Jasmine’s character but wanted to include a comment in the charge that Jasmine was fleeing the scene of a crime moments before the crash. The trial Judge did not include this comment. There were further comments regarding the jury charge on bad character evidence. The trial Judge then provided the charge to the jury and briefly touched on the issue of bad character evidence.

At the conclusion of the trial, the jury delivered a verdict of no liability against the defendants.

4. The Appeal

On appeal, the court noted that great deference must be afforded to a jury’s verdict in a civil trial, but the jury’s verdict must be the product of a fair trial. Justice Trotter concluded that the sequence of events as outlined above resulted in an unfair trial. During the trial, defendants’ counsel were permitted to impugn Jasmine’s character based on evidence of marginal probative value. This was done throughout the course of the trial, despite plaintiffs’ counsel’ request for clarity on the issue of the use of bad character evidence. Justice Trotter concluded that any warning by the trial Judge could not have reclaimed trial fairness and that the charge to the jury did not restore the balance.

Justice Trotter concluded that the taxi fare evidence was inadmissible. He noted that because the trial Judge did not write a decision on this issue, he was unable to determine the trial Judge’s reasoning as it related to balancing the probative value of the evidence against its prejudicial impact. Justice Trotter noted that Jasmine admitted at trial that she was running across the street, but the question of why she was running was not relevant, although loosely related to the narrative. Justice Trotter was not persuaded by the submission by the defendants that the reason why was probative of the speed and the way she was running. Justice Trotter noted that the way she was running was based on unfounded assumptions which was further amplified by the fact that Jasmine could not give substantive evidence about the events that night.

Justice Trotter concluded that the taxi fare evidence was bad character evidence and that this evidence did not fall into the exceptions to the bad character rule. The first exception is cross-examination of a witness related to reputation of untruthfulness, prior criminal convictions or to findings of professional misconduct involving dishonesty. This exception was not applicable given that Jasmine had no memory of the event, and she was not cross-examined on the taxi fare incident. The evidence was not admissible for the purpose of assessing Jasmine’s credibility. The second exception is admissibility of similar fact evidence which was also inapplicable in this case.

Ultimately, Justice Trotter concluded that the prejudicial impact of the taxi fare evidence far outweighed any marginal value it had in explaining the narrative of events to the jury. It was used to paint Jasmine in an unfavourable light, as a dishonest person who was not worthy of being compensated for her devastating injuries.

Justice Trotter concluded that the prejudice that accompanied the admission of the bad character evidence was compounded by defendants’ counsel’ inflammatory jury address. Defendants’ counsel’ jury address was designed to appeal to the jury’s emotions, implying that Jasmine was a criminal and a cheat.

Justice Trotter noted that in the face of an inflammatory jury address, the trial Judge has three options: correcting instructions, striking the jury or declaring a mistrial. He concluded that the trial Judge’s instructions were inadequate and failed to meaningfully address the dangers associated with the nascent theme of the trial. The trial Judge’s correcting instructions on character evidence were not sufficient and the jury needed to be told unequivocally that it must not use the evidence concerning the taxi fare and defendants’ counsel’ comments about it to find that Jasmine was a bad person who was undeserving of compensation. Justice Trotter finally concluded that the trial Judge’s instructions to the jury did not defuse the prejudicial impact of the improperly admitted evidence, nor did they neutralize the improper comments in defendants’ counsel’ closing jury address.

Lastly, Justice Trotter noted that although objections by plaintiffs’ counsel were raised at some points, but not others related to the use of the taxi fare evidence, they were persistent in the pursuit of a ruling to exclude the impugned evidence. The plaintiffs brought a pre-trial motion with a statement of law, and the issue was raised repeatedly throughout the trial. Plaintiffs’ counsel’ failure to object during other parts of the trial was not fatal to the appeal.

Ultimately, Justice Trotter found the trial to be unfair for the reasons above and ordered a new trial.

5. Commentary

For the most part, bad character evidence has evolved in the realm of criminal jurisprudence. This is one of the rare cases where the Court of Appeal has highlighted how it can also be used in the civil context. Counsel should be careful when attempting to use evidence to attack a witness’ character if it does not fall within the exceptions as described by Justice Trotter. Counsel should be weary of using certain evidence that was never put to a witness, as was the case here, with a young girl who had no memory of the events at issue.

This case also highlights the issue of when to make an objection and whether a failure to object at the right time could be fatal to an appeal should there be an unfavourable outcome. Raising an issue at the beginning of a trial that counsel knows will likely be a main issue and maintaining that position throughout the trial is a factor that courts will consider. As was the case here, plaintiffs’ counsel’s position regarding the use of the prejudicial taxi fare never changed throughout the course of the trial.

Nick Todorovic


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