Post-Offence Conduct

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General Principles

Post offence conduct (POC) is a form of circumstantial evidence.[1] It is admissible based on the usual rules of admission, including relevance and probity outweighing prejudicial effects.[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]

There is some special considerations when applying the general rules of evidence on POC as there are "reasoning risks" associated with it. There is a risk that it may be given disproportionate cogency to its true value and it risks inviting "imprecise reasoning" and inferences or "dubious conclusions".[5]

Utility

Its relevance is assessed on a "case-by-case" basis and is "fact-driven".[6]

The utility depends on what inferences can be fairly drawn from the circumstances in its entirety. [7]

The trier of fact must use POC to consider "what a person logically would or might do in given circumstances".[8]

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".[9]

It can be used in some cases to distinguish between levels of culpability.[10] This can include proof of whether a homicide was "planned and deliberate".[11]

The POC is not to be used as evidence of the commission or its planning. It is evidence of what was done after an event, which can indirectly assist the trier of fact in answering the question of "what a person logically would or might do in given circumstances".[12]

Guilty Conduct Only

POC is considered a “legal term of art” that refers “only [to] conduct which is probative of guilt.” [13] This is more apparent from the previous term used of "consciousness of guilt".[14]

Standard for Finding of Guilt

A trier of fact cannot convict using POC unless the test for circumstantial evidence is satisifed.[15]

Appellate Review

The exercise of weighing the probative value against the prejudicial effect is a discretionary exercise and is afforded deference on appeal.[16]

  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 (2011), ibid., at para 23
    R v Gough, 2020 ONCA 296 (CanLII), per curiam, at para 51 ("In cases where evidence of post-incident conduct is tendered to prove an essential element of the Crown’s case, its admission is governed by general evidentiary principles. The evidence must be relevant to a material issue at trial. It must be admissible. And its probative value must outweigh its prejudicial effects")
    R v Adan, 2019 ONCA 709 (CanLII), per Watt JA, at para 65 ("Just like other types of evidence, evidence of after-the-fact conduct is received if it is relevant, material, not contrary to any applicable admissibility rule and its probative value exceeds its prejudicial effect: Calnen, at para. 107 per Martin J. (dissenting, but not on this point).")
  3. ↑ R v SB1, 2018 ONCA 807 (CanLII), per Strathy CJ, at para 68
    R v MacKinnon, 1999 CanLII 1723 (ON CA), per Doherty JA, at para 14
  4. ↑ SB1, supra, at para 94
  5. ↑ Gough, supra, at para 53 ("Despite its reception, evidence of post-incident conduct may pose unique reasoning risks. The separation in time of the events which form the subject-matter of the charge may make it more difficult to ground the inference that the murder was planned and deliberate. The evidence may have a veneer of cogency disproportionate to its true probative value. It may spur speculation, spawn imprecise reasoning and encourage decision makers, such as an untutored jury, to jump to dubious conclusions")
  6. ↑ Gough, supra, at para 51
  7. ↑ R v Teske, 2005 CanLII 31847 (ON CA), , [2005] OJ No 3759 (C.A.), per Doherty JA, at para 85
  8. ↑ R v Hall, 2010 ONCA 724 (CanLII), per Feldman and Simmons JJA
  9. ↑ 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 (CA), per Weiler JA, at p. 629
  10. ↑ {{supra1|Gough}, at para 52 ("In some cases, this evidence may be relevant to the issue of intent and to distinguish between different levels of culpability")
  11. ↑ R v MacKinnon, 1999 CanLII 1723 (ON CA), , 132 CCC (3d) 545 (Ont. C.A.), per Doherty JA, at paras 14 to 15
    R v Poitras, 2002 CanLII 23583 (ON CA), , 57 O.R. (3d) 538 (C.A.), per Doherty JA, at para 11
    R v Azzam, 2008 ONCA 467 (CanLII), , 91 O.R. (3d) 335, per Glithero JA, at paras 46, 49
    R v Khan, 2007 ONCA 779 (CanLII), , 230 O.A.C. 174, per curiam, at para 5
    {{supra1|Gough}, at para 52
  12. ↑ R v Hall, 2010 ONCA 724 (CanLII), per Feldman and Simmons JJA, at para 131 ("Evidence of post-offence conduct is not evidence of the commission of a crime or its planning, which a jury can assess to determine the facts of an event and the identity of the perpetrator. Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.")
  13. ↑ R v Turcotte, 2005 SCC 50 (CanLII), per Abella J, at para 37
  14. ↑ R v White, 1998 CanLII 789 (SCC), per Major J
  15. ↑ R v Aden, 2019 ONSC 4032 (CanLII), at para 58 ("The trier of fact must not enter a conviction based on post-offence conduct unless satisfied beyond a reasonable doubt that guilt is the only rational inference that can be drawn after consideration of all of the evidence.")
    see Circumstantial Evidence
  16. ↑ 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 (2011), supra, at paras 105 to 106
    R v Roy, 2004 CanLII 31688, , 2004 CarswellOnt 3937 (Ont. C.A.), 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.
False Alibi

Post-offence conduct that permits inference of guilt includes the findings that an alibi to be false.[5]

False Statements

An exculpatory false statement made after being informed of the crime may be used as post-offence conduct consistent with guilt. There must however be independent evidence of fabrication before such a factual finding be made.[6]

  1. ↑ White, supra
  2. ↑ R v Parrington, (1985), 20 CCC (3d) 184, 1985 CanLII 3610 (ON CA)
    White, supra
  3. ↑ R v Ruddick, 1980 CanLII 2941 (ON CA), , (1980), 57 CCC (2d) 421, (Ont. C.A.), 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
    R v Cudjoe, 2009 ONCA 543 (CanLII), per Watt JA, at para 78
  5. ↑ R v Hibbert, 2002 SCC 39 (CanLII), per Arbour J
    R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 107 ("If the post offence conduct is an alibi, found to be false, then an intent to deceive may be reasonable to infer which supports a further inference of consciousness of guilt on the part of the accused.")
    see also Alibi
  6. ↑ Whyee, ibid., at para 108 ("...exculpatory false statements made upon being informed of a crime may be considered post offence conduct consistent with consciousness of guilt. As with a disbelieved alibi, the court must weigh whether there is evidence of fabrication by considering the circumstances in which the supposed false statement was made. If those circumstances support the finding that a false exculpatory statement was made by an accused because he/she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.")
    R v O'Connor, 2002 CanLII 3540 (ON CA), , 2002 O.J. No 4410, per O'Connor ACJ

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. ↑ R v Angelis, 2013 ONCA 70 (CanLII), per Laskin JA, at paras 52 to 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 paras 26 to 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

Given that POC evidence creates risks of the trier-of-fact being misled or make dubious conclusions or inferences, special cautionary instructions may be necessary.[1]

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.[2] This risk can be mitigated through instructions that caution the jury not to infer guilt and to consider innocent explanations.[3] A "Hall error" of circular reasoning, on its own, is not necessarily fatal.[4]

Where innocence and guilt are both reasonable inferences then a "no probative value" instruction may be necessary.[5]

Juries must be cautioned against "drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct."[6]

Juries should only consider the value of the POC after considering all the of the other evidence as well.[7]

  1. ↑ R v Gough, 2020 ONCA 296 (CanLII), per curiam, at paras 52 to 53 esp. at 54 ("In many cases, the nature and magnitude of these risks will require a specific cautionary instruction to the jury.")
  2. ↑ R v Hall, 2010 ONCA 724 (CanLII), per Feldman and Simmons JJA, at paras 142 to 144
  3. ↑ 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
  4. ↑ R v Taylor, 2015 ONCA 448 (CanLII), per Watt JA, at paras 142, 145
    Nur, supra, at para 8
    Hall, supra, at para 146
  5. ↑ R v Kostyk, 2014 ONCA 447 (CanLII), per Blair JA (3:0), at paras 91 to 95
  6. ↑ Hall, supra
  7. ↑ 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 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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