Ret. Judge Lloyd Budzinski It’s Christmas. It reminds me of “better be good; better watch out; the Judge is coming to hear your case out.” What value has good character?
Rules for character differ between trial, sentencing and Santa.
Character doesn’t mean Mom saying; “he’s a good boy”, parents are too personal and forgiving. We need a witness testifying about what people as a group (societal, neighbors, job, or school contacts) think about you.
It’s your general shared reputation. It should include: how they know you (e.g., co-worker); for how long; knowledge of the charges and the community’s opinion regarding a specific character (non-violent, honest) relevant to that charge. It’s a general understanding of what the village thinks and not a personal one.
In the Trial, the Crown cannot raise bad character unless the defendant raises their good character. That is important. If the defence at any time suggests the defendant’s Good Character, the Crown can rebut it by calling evidence of Bad Character but it cannot be used to raise propensity to commit crime.
However, if the accused can establish good character, the Judge instructs the jury, ‘Good character is not a defense but it may be important in the Jury’s decision. It may make it less likely the accused committed the offence. You must consider that evidence along with all the other evidence in deciding guilt beyond a reasonable doubt.’
In some cases, where the facts challenge the Jury, it may swing the balance to a reasonable doubt. Be careful, if you raise it, social media captures our past behaviour forever: no matter how good you are today, the bad is always available for the Crown. Santa, like your mother, is a bit more forgiving about last year’s conduct, than a Jury, but I understand that may end soon. The North Pole is installing Social-Media.
The rule for Criminal Records is different. If any witness including the accused testifies, their Records are relevant for credibility — only credibility; “The Record can only be used to consider how much or little you believe the person. It cannot be used to infer a person’s propensity to commit the crime.” The generalization that the defendant is bad for all purposes is dangerous. It distracts from the trial’s issues. For this reason, many defendants with Records avoid the stand.
Be careful whom you call as a character reference. The person’s character can be attacked and it may reflect on you.
I remember cross-examining an accused when a man sitting in the back row, suddenly started a drunken ruckus. The Judge ordered the spectator out! The defendant shouted; “But, but, your honour that man is my character witness”
Sometimes, a lawyer thinking he is helping the client produces an inappropriate reference maybe hoping to impress the Judge. I was once handed a note signed by a city councillor on City Hall ‘letterhead’ speaking to a person’s behaviour.
Confused I asked the lawyer: “Was it the witness or the city who had the opinion. It appeared that the writer may have attempted to use status to influence me. If counsel didn’t know who was making the recommendation he should find out or withdraw the letter and did.
Public Officials, must be wary when using their titles for a personal matter; otherwise, their opinion could be misinterpreted by the public.
There is a need for a strong, independent, and experienced AG to protect Crowns from outside interference. As a Crown Attorney, it was stressed you never responded to a call from an MP or Minister regarding a case—the same as a Judge.
The standing joke among Crowns was to respond to such calls by laughing;” Who are you really? You’re kidding me. Don’t be ridiculous, no MP is foolish enough to call about a current case, stop these tricks… phone my boss, the ATTORNEY GENERAL.” We would then hang up. It was inappropriate to engage with a MP about a case. Attorney Generals like Robert McMurtry, Ian Scott and Hampton always backed us up.
In Sentencing, rules are different. With a conviction, both sides can call evidence of good or bad character as well as ‘Criminal Records’. It relates to the probability of a successful rehabilitation or chance of re-offending. Good character and apologies make a strong case for leniency. Rehabilitation is more likely and reoffending less.
Good Character has value, not only at Christmas time but for your entire life…Better watch out, better be good. Tonight, it is for Santa, tomorrow it is for a career opportunity and always it is a matter of trust and respect. Happy Holidays and Merry Christmas.
Judge Lloyd Budzinski retired after 28 years and was a former Crown Attorney, Defence Counsel and Ontario’s Assistant Deputy Minister of Criminal Law. He was Chief Prosecutor in the trial of ex-RCMP officer Patrick Michael Kelly, found guilty of murder for throwing his wife from a 17th floor balcony in March 1981. He can be reached at jbudzinski@talkjustice.info