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TAB 2

Evidenceof Post-Offence Conduct

The HonourableMadam JusticeMichelle Fuerst Superior Court of Justice

The Six-Minute Criminal Court Judge

fFtrdâ‚ŹIilfi' I'llll9*]il' r r r i r c H Tt r t v ^ r L t^ I barreau The Law Socrety or I du Haut-Canada Upper Canada I

CONTINUING LEGAL EDUCATION


Post-Offence Conduct

GeneralPrinciples r

Evidenceof post-offenceconduct,or as it is sometimescalled,after-

the-factconduct,is a kind of circumstantial evidence. o

The phrase "after-the-fact conduct" was identified by the Ontario

Courtof Appealin R. v. Peavoy(1997),117 C.C.C.(3d) 226 (Ont.C.A.) as a neutralterm to be used in place of "consciousness of guilt". The court favouredthe useof a neutralterm becauseit avoidslabellingevidencewith a conclusionthat the trier of fact may not wish to draw.

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Theuseof a neutralphrase,whether"post-offenceconduct"or "after-

the-factconduct"was endorsedby the SupremeCourt of Canadain R. v. wite (1998),125C.C.C.(3d) 385. Thecourtcommented thatrhephrase "consciousness of guilt" should be avoided,becauseit undermines the presumption of innocence,and can be misleadingin that it is simplyone inferencethat the trier of fact may draw and is not a specialcategoryof evidence.

Rutionalefor Admitting Evidence of Post-Offence Conduct o

{Jndercertain circumstances,the conduct of an accusedpersonafter

a crimehasbeencommitted may supportan inferenceof guilt of that crime, because basedon human experienceandlogic, the conductis consistent with

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engagein the particularconduct,for exampleflight or lying, for innocent reasons, andthatevenif theaccused wasmotivatedby a feelingof guilt, that feelingmight be attributableto someculpableact other than the offence charged:seeR. v. LVhite, supra; R. v. Arcangioli,supra.

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In appropriatecircumstances, including where post-offence conduct

supportingan inferenceof guilt has beenleft with the jury, the trial judge should draw the jury's attentionto post-offenceconductconsistentwith innocence,such as volunteeringbodily substances for testing: see R. v. Baltrusaitis, supra; R. v. Schell(2000),148C.C.C.(3d) 219(Ont. C.A.); R. v. B. (5.C.)(1997),119C.C.C.(3d)530(Ont.C.A.)

The Applicable Standard of Proof

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It is an elror to insffuct the jury to apply the reasonabledoubt

standardto evidenceof post-offenceconduct. Rather,such evidence must be weighed together with all the evidencein deciding whether the Crown hasprovedguilt beyonda reasonable doubt. SeeR. v. Wite, supra.

The SupremeCourt of Canadahasrecognizedtwo exceptionsto this: 1. Where the evidenceof post-offenceconductconstitutesthe only evidence, or substantiallyall the evidencefor the Crown, such evidencemust be proven beyonda reasonabledoubt to support a guilty verdict; 2. Where the evidenceof post-offenceconductis so crucial to the Crown's casethat a conclusionof suilt necessarilv furns on it. and L-)


the evidenceis subjectto two conflictinginterpretations, the trial judge shouldtell the jury to considerthe recordas a whole and givethebenefitof thedoubtto the accused.

when lYill Post-otfenceconductEvidenceHave Probativevulue? o

Thereis no clearrule identifoingthe circumstances in which evidence

of post-offenceconductmay be used to supportan inferenceof guilt. The probative value of evidenceof post-offence conduct will depend on the natureof the evidence,the issuesin the case,and the positionsof the parties: seeR.v. MacKinnon(1999),,43 o.R. (3d) 378 (ont. C.A.). It is a question of relating the evidenceof post-offence conduct to the issuesraised, and determiningthe extentto which, if at all, it is logically probativeof those issues:seeR.,t,.Diu, supra.

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sometimes, evidence of after-the-fact conduct may support an

inferencethat an accusedhad a particular state of mind. Where the two accusedeach denied going to a location to rob it, and there shooting the deceased, and blamedthe shootingon the other, evidencethat they fled the sceneof the shooting,laughedaboutthe incident,and disposedof evidence in a dumpsterwas probative. It could be inferred from their conduct that they had done exactly what they had planned to do, and so support the Crown's position that the shooting was a planned and deliberate murder ratherthanthe result of somethinggone awry: seeR. v. MacKinnon, supra. Seealso: R. v. Poitras(2002),57O.R. (3d) 538 (Onr.C.A.).

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Evidenceof the accused'sconduct after he assaultedthe deceased

with a baseballbat, including moving the body into the bush, leaving the scene,and changinghis shirt, was relevant to his defenceof not criminally responsible,in that his actions demonstratedthought patterns that were either chaotic, or organized, and so would assist the jury in determining whetherhe was incapableof appreciatingthe natureand quality of his act. If the defenceof not criminally responsiblefailed, the evidencecould still assistthe jury rn analyzingthe effect of alcohol consumption and mental disorderon the accused's intent: seeR. v. Bailey, [2001] B.C.J.No. 2543 (B.C.C.A.).

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Post-offenceconduct can be used to support an inference of guilt

wherethe accusedhas admitted committing a physical act, but assertsthat the act was justified in some way. Where the accusedlied to emergency personnelabouthow her husbanddied, thoselies could be used by thejury to cast doubt on her assertionat trial that she had stabbedher husbandin self-defence.They had no bearing, however,on her alternative defenceof intoxicationand the matterof intent: seeR. v. Swanson,12002]B.C.J.No. 2134(B.C.C.A.). On the issue of the relevanceof post-offenceconductto castdoubton a defenceof self-defence,seealsoR. v. Wite, R. v. peavoy: andR. v. Diu, all supra.

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Wherethe accusedchargedwith murder deniedany involvementin it

and claimedthat he was merely an accessoryafter the fact, his post-offence conductof concealingand destroyingevidencewas of probative value in determiningwhether he, as opposed to a co-accused,had killed the

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deceased.The issuewas the identity of the murderer,and not the accused's levelof culpability:seeR. v. Thurston,l200llO.J.No. 1401(Ont.C.A.).

Evidence of No Probative Value o

In somecircumstances, evidencereliedon by the Crown as evidence

of post-offenceconducthasno probativevalue,in thattheparticularconduct or demeanourcannot support an inferenceof awareness of guilt. It should be excluded. If it has been adducedbecauseof the way in which the trial unfolded,the trial judge should avoid putting it to the jury as evidenceof post-offenceconduct.

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Evidenceof the accused'scalm demeanour on beingtold by the police

of the deceased'sdeath, his failure to ask any questionsabout the circumstancesof the death, and his failure to tell the police about a recent meeting with the deceasedare examplesof evidencethat can easily be misinterpretedand shouldnot be left with the jury as evidencecapableof supportingan inferenceof guilt: seeR. v. Baltrusaitis(2002),58 o.R. (3d) 161 (Ont. C.A.); R. v. Bennett,October 3, 2003,Ont.C.A.; R.v.Levert (2001), 159 c.c.c. (3d) 7l (ont. c.A.). where the jury would have to speculatein order to find the conduct consistentwith guilt of the offence charged,the evidenceshouldnot be left to themas evidenceof post-offence conduct: seeR. v. Chung,ll999l B.C.J.No. 202 (B.C.C.A.).Evidencethat is as consistentwith innocenceas it is with guilt cannotreasonablysupport an inferenceof guilt and should not be left with thejury as evidenceof postoffenceconduct:seeR. v. Grewall,120001B.C.J. No. 2382(B.C.S.C.).

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o

In limited circumstances,the trial judge shouldinstruct the jury that

the evidenceof the accused'spost-offenceconducthas no probative value (cannotsupportan inferenceof consciousness of guilt) with respectto the offencecharged. A jury shouldnot be permittedto considerevidenceof post-offence conduct when the accusedhas admitted culpability for an offenceother than that in issue,andthe evidencecannotlogically support an inference of guilt with respectto one crime rather than the other. This includes instanceswhere the accuseddeniescommitting the offence in question,but admits perpetratinga relatedoffencearisingfrom the same set of facts. For example,where the accusedis chargedwith aggravated assault in connectionwith a stabbing,deniesany involvementin the stabbing,but admitspunching the victim beforesomeoneelsestabbedhim; or where the accused is charged with two or more related offences, and admits involvementin some but not all, evidenceof post-offenceconducthas no probativevalue with respectto any particularoffence.It alsoincludescases where the accused admits the actus reus of a criminal act, but denies a specificlevel of culpability,so that the only questionis his level of offence. For example,where the accusedadmitsthathe causedthe deceased's death, evidenceof post-offenceconductdoesnot assistin determiningwhetherhe committed murder, or manslaughter.In thesecases,the evidenceof postoffence conduct has no probative value with respect to any particular offence,and the jury should be so instructed: seeR. v. Wite, supra; R. v. Arcangioli,supra; R. v. shchavinslqt, [2000]o.J. No. 3357(ont. c.A.). o

{ no probativevalue instructionis not required,however,where the

accusedhas denied aq, involvementin thefacts underlyingthe charge at 2-7


issue, and has sought to explain his/her actions by reference to some unrelatedculpableact. In thesecases,the identity of the accusedas the perpeffator,ratherthanthe extentof his/herculpability, is in issue.

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It has beensuggestedthat even where post-offenceconductevidence

has someprobativevalue,it can still be withdrawn from thejury on the basis that the prejudicialeffect is greaterthan the probative value: see R. v. Grewall,supra.

Jury Instruction

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In general,thejury shouldbe instructedthat:

(a) The evidenceof post-offenceconducthas only an indirectbearingon the issueof guilt, andthejury shouldexercisecautionin infemng guilt because the conductmay be explainedin an alternativemanner; and (b) The evidencecanonly be usedto support an inferenceof guilt where the jury has rejectedany innocentexplanationfor the conduct: see R. v. Diu, suprq,;R. v. Bennett,supra.

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In a multiple count trial, a limiting instruction shouldbe given where

the accusedadmitsto committing the physical acts of some, but not all counts,and the post-offenceconductevidenceprovides a basisfor inferring guilt on thosecountsonly: seeR. v, Diu, supra.

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The following sampleinstmction is found in the Ontario Specimen

Jury Instructions: 2-8


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You have heard evidencethat, after the offence(s) charged took place,

(NOA) (describe briefly relevantwords and/orconduct).

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Whata personsays/does after (a) crime(s)was (were)committed,may help

you decidewhetherit was that personwho committedit (them). It may help. It may not. The words (or, conduct) may indicate that (NoA) committed the crime(s).on the other hand,the words (or, conduct)may be those (that) of an innocentpersonwho simplywantsto avoid involvementin a police investigation, (or) embanassmentfor (him/herself) or others (or,) (specify alternative explanation(s))

(Reviewrelevantevidenceand relateto alternativeexplanation(s))

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The firstthing to decideis whether(NOA) actuallydid or saidthesethings.

If you find that (s,4re)did not do or say these things, you must not consid,erthis evidencein reachingyour verdict.

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If you find that (NOA) did in fact do or say these things, you should

considernext whetherthis was because(NoA) committedthe offence(s)chareed or for someotherreason.

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If you find that what (anything)(NOA) said or did afterwardsis consistenr

with (him/her)being consciousof having done what is allegedagainst(him/her), and not for some other (or, specify) reason, you may consider this evidence, togetherwith all the other evidence,in reachingyour verdict. If you do not or cannotfind that(NOA) said/didthosethings for that reason,you must nol consider thisevidence in this way.

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Post Offence Conduct