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Criminal - NCR - Evidence. R. v. Pereira
In R. v. Pereira (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here in a murder trial where the "primary issue was whether the appellant was not criminally responsible (“NCR”)", but the defendant was found guilty (and thus criminally responsible).
Here the court considered an issue of 'post-offence conduct', here in an NCR context:[33] This Court provided helpful guidance on the treatment of post-offence conduct in the NCR analysis in R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 46, at para. 142:In the NCR context, after-the-fact conduct may be relevant to an assessment of an accused’s NCR defence. Evidence, for instance, that an accused concealed the weapon or fled the scene of the offence may bear upon the accused’s capacity to appreciate the wrongfulness of their conduct. At the same time, however, after-the-fact conduct is often highly ambiguous and carries the risk that the trier of fact may “mistakenly leap from such evidence to a conclusion of guilt” without taking into account alternative explanations for the accused’s behaviour. Like any other evidence, after-the-fact conduct “takes on its full significance and probative value only in the context of the other evidence in the case”. [Citations omitted.] [34] In Worrie, the trial judge relied, in part, on the appellant’s after-the-fact conduct to discount expert opinions and reject the appellant’s NCR defence. In that case, the unanimous and uncontroverted expert opinions were that the appellant’s after-the-fact conduct was attributable to the fact that he understood that his actions were legally wrong but that his illness affected his ability to perceive that his actions were morally wrong. This court found that, although not required in every case, in the face of uncontradicted expert opinion, the trial judge should have examined why he rejected the expert’s explanation for the appellant’s after-the-fact conduct, and concluded that the only inference that could be drawn from the conduct was that the appellant in that case knew his actions were morally wrong.
[35] This case may be distinguished. Here, the trial judge rejected Dr. Gojer’s expert evidence for the reasons set out above, and there was no consensus as to the implications of the appellant’s post-offence conduct. The trial judge found the distinction between moral and legal wrongfulness in this context to be “virtually indiscernible.” In my view, in the context of this case, the trial judge appropriately relied on the appellant’s post-offence conduct, and particularly his attempts to conceal evidence of the crime, and his admission that he had done something “bad.”
[36] The trial judge was entitled to consider the post-offence conduct in considering whether the appellant knew that what he did was morally wrong. In doing so, the trial judge was not required to conclude that this finding was the only possible explanation for the appellant’s conduct.
[37] Further, this post-offence conduct was only part of the evidence that the trial judge considered. He also considered evidence that the appellant had lied, and evidence that Ms. Horne intended to break up with the appellant.
[38] I see no error in the trial judge’s consideration of the post-offence conduct, as part of his determination that the appellant knew that his actions were morally wrong.
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