Post-Offence Conduct

From Criminal Law Notebook

General Principles

Post offence conduct (POC) is a form of circumstantial evidence.[1] It is admissible based on relevance.[2] Value of the POC will depend "on the nature of the evidence, the issues in the case, and the positions of the parties".[3] Thus, the POC may be relevant to one issue but not relevant to another.[4]

Utility

The utility depends on what inferences can be fairly drawn from the circumstances in its entirety. [5]

The trier of fact must use POC to consider "what a person logically would or might do in given circumstances".[6]

It will generally be admissible in order to establish that "the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person".[7]

Guilty Conduct Only

POC is considered a “legal term of art” that refers “only [to] conduct which is probative of guilt.” [8] This is more apparent from the previous term used of "consciousness of guilt".[9]

Appellate Review

The exercise of weighing the probative value against the prejudicial effect is a discretionary exercise and is afforded deference on appeal.[10]

  1. ↑ R v Gagnon, 2006 MBCA 125 (CanLII), per Hamilton JA
    R v White, 2011 SCC 13 (CanLII), [2011] 1 SCR 433, per Rothstein J, at para 22
    R v Taylor, 2015 ONCA 448 (CanLII), per Watt JA, at para 142
    R v Nur, 2018 ONCA 8 (CanLII), per curiam
  2. ↑ White, ibid. at para 23
  3. ↑ R v S.B.1, 2018 ONCA 807 (CanLII), per Strathy CJ, at para 68
    R v MacKinnon, at para. 14
  4. ↑ SB1, supra, at para 94
  5. ↑ R v Teske, 2005 CanLII 31847 (ON CA), [2005] OJ No 3759 (C.A.), per Doherty JA, at para 85
  6. ↑ R v Hall, 2010 ONCA 724 (CanLII), per Feldman and Simmons JJA
  7. ↑ R v Angelis, 2013 ONCA 70 (CanLII), per Laskin JA, at para 51
    R v Peavoy, 1997 CanLII 3028 (ON CA), (1997), 34 O.R. (3d) 620 (C.A), per Weiler JA, at p. 629
  8. ↑ R v Turcotte, 2005 SCC 50 (CanLII), per Abella J, at para 37
  9. ↑ R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, (1998) 125 CCC (3d) 385, per Major J
  10. ↑ R v Berry, 2017 ONCA 17 (CanLII), per Blair JA, at para 42
    R v Kayaitok, 2017 NUCA 1 (CanLII), per curiam, at para 18

Probative Value of Evidence

The relevance of POC depends on the context of the conduct and the issues of the trial.[1] There is "no prefabricated rule [that] stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue". [2]

The Judge must decide "on the basis of the evidence as a whole" if the conduct "related to the offence, or something else".[3]

The evidence does not need to suggest only one reasonable inference to be admissible as POC.[4] There only needs to be one relevant inference among many for it to be put to the trier-of-fact.[5]

Conduct cannot be so ambiguous in context that it should be given no probative value at all.[6]

Conduct can be probative to the actus reus but provide no value to the mens rea of the offence.[7]

  1. ↑ R v White, 2011 SCC 13 (CanLII), [2011] 1 SCR 433, per Rothstein J, at para 42
  2. ↑ R v Cudjoe, 2009 ONCA 543 (CanLII), per Watt JA at para 79
  3. ↑ White, supra at paras. 105-6
    R v Roy, 2004 CarswellOnt 3937 (Ont. C.A.), 2004 CanLII 31688 (ON CA), per Simmons JA at para. 75
  4. ↑ R v Nicholson, 2017 ONCA 3 (CanLII), per Pardu JA, at para 15
  5. ↑ Nicholson, ibid., at para 15
  6. ↑ R v Allen, 2009 ABCA 341 (CanLII), per curiam(2:1) at para 73
  7. ↑ Allen, ibid., at para 73

Examples of Post-Offence Conduct

POC is frequently seen as:[1]

  1. flight from the scene of the crime or the jurisdiction in which the crime was committed;[2]
  2. attempts to resist arrest;
  3. failure to appear at trial; and
  4. acts of concealment such as lying, assuming a false name, changing one's appearance, and hiding or disposing of evidence.[3]

This inference is case-specific based on factors such as:[4]

  1. the nature of the conduct;
  2. the facts sought to be inferred from the conduct;
  3. the positions of the parties; and
  4. the totality of the evidence.
  1. ↑ R v White
  2. ↑ R v Parrington, (1985), 20 CCC (3d) 184, 1985 CanLII 3610 (ON CA)
    White, supra
  3. ↑ R v Ruddick, (1980), 57 CCC (2d) 421, (Ont. C.A.), 1980 CanLII 2941 (ON CA), per Martin JA (3:0)
  4. ↑ R v Figueroa (2008), 232 CCC (3d) 51 (Ont. C.A.), 2008 ONCA 106 (CanLII), per Doherty JA (3:0) at paras 33 and 35
    Cudjoe, supra, at para 78

Valid Uses of Admissible Post-Offence Conduct

While POC may be probative to culpability, it should not be used to determine the level of that culpability. That is to say, POC should generally not be admissible in order to establish a state of mind of the accused where the actus reus is already admitted.[1] It follows that it should generally not be used to determine the difference between murder and manslaughter.[2] POC can be used to attack credibility.[3]

An exculpatory statement that has been discredited can only be used to make to an adverse inference against the accused where there is independent evidence of fabrication.[4] The key is to establish an intent to deceive to support an inference of consciousness of guilt.[5]

The proof of fabrication can be based on the circumstances of the statement.[6] This includes compelling inconsistencies[7] or contradictory statements suggesting concoction.[8]

Such statements should be treated in the same manner as alibis.[9]

Proof of the accused's flight from a scene permits an inference that an offence occurred. It does not permit the inference, without more, that it was a specific offence charged.

It can be used to assess the validity of a claim of self-defence.[10]

  1. ↑ Angelis, supra at para 52, 53
    R v Jaw, 2009 SCC 42 (CanLII), per LeBel J (7:2) at para 39
  2. ↑ Angelis, supra at para 53
  3. ↑ Jaw, supra, at para 39
  4. ↑ R v Hein, 2008 BCCA 109 (CanLII), per Huddart JA (3:0) at para 53
  5. ↑ R v Hibbert, 2002 SCC 39 (CanLII), per Arbour J (7:2) at para 67
    R v Tessier, 1997 CanLII 3475 (BCCA), per Rowles JA
  6. ↑ R v O'Connor 2002 CanLII 3540 (ONCA), per O'Connor ACJ (3:0) at para 26-27
  7. ↑ R v Bennett, 2003 CanLII 21292 (ONCA), per McMurtry CJ
  8. ↑ R v Andrade, (1985) 6 OAC 345, 18 CCC (3d) 41, 1985 CanLII 3502 (ON CA), per Martin JA at 67
  9. ↑ O'Connor, ibid., at para 18
  10. ↑ R v Nicholson, 2017 ONCA 3 (CanLII), per Pardu JA, at para 8

Multiples Offences

Where POC occurs once multiple offences committed it is permissible for the jury to determine the weight if any that is placed on the POC with respect to each offence.[1] It is not necessary to give a "no probative value" instructions expected where there is a different explanation possible.[2]

  1. ↑ R v Williams, 2014 ONSC 2808 (CanLII), per Goldstein J
  2. ↑ Williams, ibid.

Jury Instructions

Jury instructions must be cautious not to create circular reasoning whereby evidence is determined to be POC because he was conscious that he committed the offence.[1] This risk can be mitigated through instructions that caution the jury not to infer guilt and to consider innocent explanations.[2] A "Hall error" of circular reasoning, on its own, is not necessarily fatal.[3]

Where innocence and guilt are both reasonable inferences then a "no probative value" instruction may be necessary.[4]

Juries must be cautioned against "drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct."[5]

Juries should only consider the value of the POC after considering all the of the other evidence as well.[6]

  1. ↑ R v Hall, 2010 ONCA 724 (CanLII), per Feldman and Simmons JJA, at paras 142 to 144
  2. ↑ R v Nur, 2018 ONCA 8 (CanLII), per curiam, at paras 6 to 7
    R v Moffit, 2015 ONCA 412 (CanLII), per Tulloch JA, at para 55
  3. ↑ R v Taylor, 2015 ONCA 448 (CanLII), per Watt JA at para 142, 145
    Nur, supra, at para 8
    Hall, supra, at para 146
  4. ↑ R v Kostyk, 2014 ONCA 447 (CanLII), per Blair JA (3:0), at paras 91 to 95
  5. ↑ Hall, supra
  6. ↑ R v SB1, 2018 ONCA 807 (CanLII), per Strathy CJ, at para 119

Intent

POC can be used to determine intent in limited circumstances. Generally, it is not permitted as the inference of consciousness of guilt is "highly ambiguous and susceptible to ...error."[1]

Where there is a risk of an improper inference of intent, the judge must give a "no probative value" instructions to the jury.[2]

Evidence of flight cannot be used to establish intent for murder as "evidence of flight was equally consistent with the unlawful act offence of manslaughter."[3]

  1. ↑ R v White, 2009 BCCA 513 (CanLII), per Finch CJ, at para 60
  2. ↑ White, ibid.
  3. ↑ White, ibid.

Specific Offences

Attempted Suicide

An attempt to commit suicide has been given weight as POC suggesting guilt.[1]

Evidence of Intent to Kill

POC constituting statements and acts of the accused can go to evidence of "planning and deliberation" in a homicide case.[2]

It may be impermissible when being used to distinguish between manslaughter and murder.[3] Where the evidence is relevant for other purposes a limiting instruction to the jury would be required. Failure to do so is a reversible error.[4] However, it may be used in some limited capacity where the evidence relates to the concealment of the extent of violence and other evidence of a crime.[5] When it can be used will depend on the exact circumstances.[6]

POC that includes wrapping the victim in a sheet and leaving them to die in a bathtub as well as fleeing the scene and not calling for medical assistance.[7]

  1. ↑ e.g. R v McNeice, 2013 BCCA 98 (CanLII), per Finch CJ - accused charged with child pornography offences left suicide note apologizing to family
  2. ↑ R v Smith, 2014 ONCA 324 (CanLII), per Laskin JA - accused stated "...I listened to my mind. Eugena is dead" and used victim's facebook account to "de-friend" another person
    R v Poitras, 2002 CanLII 23583 (ON CA), (2002), 57 O.R. (3d) 538 (C.A.), per Doherty JA
    R v Penney, [2004] OJ No 5914 (S.C.)(*no CanLII links)
  3. ↑ R v Calnen, 2017 NSCA 49 (CanLII), per Scanlan JA pending appeal to SCC
  4. ↑ R v Chambers, 2016 ONCA 684 (CanLII), per Hoy ACJ, at para 82
  5. ↑ R v Rodgerson, [2015] 2 SCR 760, 2015 SCC 38 (CanLII), per Moldaver J at para 34 R v Lumberjack, 2017 SKCA 106 (CanLII), per Ottenbreit JA, at para 24
  6. ↑ Lumberjack, supra at paras 25 and 26
  7. ↑ R v McArthur, 2013 SKCA 139 (CanLII), per Lane JA at para 13

See Also

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