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Evidence - Post-Offence Conduct (2). R. v. Tubic
In R. v. Tubic (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a second-degree murder conviction.
Here the court considers 'after-the-fact conduct' evidence:[41] The trial judge referred to the governing authorities from the Supreme Court of Canada concerning after-the-fact conduct evidence, including R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, where the court stated at para. 42:Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability. [42] Building on this passage from White, the authorities are now clear that, depending on the circumstances of the case, after-the-fact conduct evidence may be probative of an accused person’s level of culpability. But this is an area that must be approached with rigour and care.
[43] In R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760 (“Rodgerson”), the Supreme Court of Canada explained the different uses that might be made of after-the-fact conduct evidence that involves concealment. In that case, also a homicide, Moldaver J. held that evidence of concealment was relevant to whether Mr. Rodgerson unlawfully killed the victim. This available inference was a matter of common sense: Rodgerson, at para. 27. However, the use of the same evidence as it related to the issue of intent required further consideration. As Moldaver J. wrote, at paras. 27 and 28:Once the jury moved on to the issue of intent for murder, however, this simple inferential reasoning was no longer of any use. Rather, the limited relevance of this post-offence conduct on the issue of intent rested on the following, narrower inference: the jury might reasonably conclude that Mr. Rodgerson concealed Ms. Young’s body and cleaned up the scene of her death in order to conceal the nature and extent of her injuries and the degree of force required to inflict them.
In the sections of the jury charge relating to the issue of intent, the trial judge failed to link the evidence of concealment and clean-up to the nature and extent of Ms. Young’s injuries and the force required to inflict them. Rather, his charge merely reiterated the existence of the evidence, and instructed the jury to consider it along with all the other evidence adduced at trial. This was a legal error. Having first used the concealment and clean-up evidence in a common sense manner based on clear and readily accessible inferences, there was a risk that the jury might continue to rely on the evidence in this same manner on the issue of intent. The failure to instruct the jury on the narrower basis for using the evidence created a risk that the jury might convict Mr. Rodgerson for murder based only on the broader inference that had previously been sufficient: that the concealment and clean-up pointed to a consciousness of guilt and a desire to prevent discovery of an unlawful killing. [Emphasis added.] Moldaver J. also said that the trial judge erred in failing “to assist the jury in understanding the limited and somewhat nuanced relevance of the concealment and clean-up evidence on the issue of intent for murder” (emphasis added): Rodgerson, at para. 37.
[44] In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, Martin J. (dissenting, but not on this issue) discussed the potential uses of after-the-fact evidence and its relation to intent. As she said at para. 112:As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct”: Smith, at para. 78. [Emphasis added.] [45] Continuing on this theme, Martin J. said, at para. 139: “It may not always be reasonable to infer that an individual who destroys a body after causing their death has done so to conceal the nature and extent of the injuries. The reasonableness of that proposition will depend on the record as a whole and the issues raised at trial.” Martin J. also warned of the reasoning risks that may accompany after-the-fact conduct evidence at para. 116:Even if admitted for a particular purpose, after-the-fact conduct may pose some unique reasoning risks: see D.M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275. Conduct that is “after-the-fact”, and therefore removed in time from the events giving rise to the charge, carries with it a temporal element that may make it more difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions. ....
[48] The appellant’s first submission may be disposed of briefly. The failure to reach a firm conclusion on Mr. Fiedler’s cause of death does not, standing alone, amount to an error. As Martin J. held in Calnen, this is not a bar to the use of after-the-fact conduct evidence on the issue of intent. At para. 132, she said: “It is not the law that that an offence must be separately established before after-the-fact conduct evidence can be used by the trier of fact to determine an accused’s intent; after-the-fact conduct evidence is not merely complementary evidence.” Calnen stands as an example of the same situation. In homicide cases where the body is destroyed, it may be impossible to determine the cause of death, hence the need to consider after-the-fact conduct evidence.
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[65] While the treatment of after-the-fact conduct evidence has developed in the realm of jury trials, the concerns apply equally to judge alone trials: Calnen, at paras. 112-113.[8] . R. v. Necan
In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder.
Here the court considered 'after-the-fact conduct' (aka 'post-offence conduct') evidence:[119] After-the-fact conduct evidence – circumstantial evidence that relates to the accused’s statements and activities after the alleged offence – poses unique reasoning risks because jurors might leap from evidence of after-the-fact conduct to an inference of guilt without assessing other plausible explanations for the conduct: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57; Ethier, at para. 57; and Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 25. As recently noted by Zarnett J.A. in Ethier, at para. 57, general cautionary instructions simply informing the jury that they must consider other explanations for the accused’s conduct will sometimes address the risk. At other times, specific directions will be required, ones that warn of specific reasoning dangers that may arise on the evidence. . R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court comments on post-conduct evidence, which in this case also constituted 'demeanour' evidence:[104] In his charge to the jury, the trial judge summarized the Crown’s position and gave a general instruction on after-the-fact conduct evidence in reference to the flight from the scene but did not give any specific instruction with respect to Mr. Chizanga’s demeanour in the cab. Mr. Chizanga contends that demeanour evidence, as a subset of after-the-fact conduct evidence, requires a special caution where it can give rise to multiple inferences. According to Mr. Chizanga, the jury should have been instructed on how to consider what inference, if any, to draw from the evidence of his demeanour.
[105] According to the respondent, the instructions on after-the-fact conduct were sufficient and a specific instruction on Mr. Chizanga’s demeanor was not required. Read as a whole, the instructions directed the jury on how to properly evaluate all the after-the-fact conduct evidence and was not underinclusive. The respondent rejects the suggestion that, as a result of this omission, the jury was invited to infer guilt on the basis that Mr. Chizanga appeared calm in the cab.
[106] Evidence of after-the-conduct includes evidence of what an accused said and did after the offence was allegedly committed. Because it takes in a vast array of circumstances, the legal treatment of after-the-fact conduct generally is highly context and fact-specific: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J. (dissenting, but not on this point). . R. v. D.B.
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers evidence of the accused's after-the-fact demeanour, and it's similarity to post-conduct evidence:(b) Applicable Legal Principles
[19] Evidence of the accused’s demeanour upon being confronted with an allegation is notoriously unreliable: see R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.). In Levert, the complainant’s foster mother confronted the appellant with an accusation that he had touched the complainant inappropriately. The appellant denied the allegations, but according to the complainant’s foster mother, was “very, very, very calm” and “not on the defensive at all”. The appellant testified that he was generally a calm person and at the time the allegation was made he felt confident that the foster mother would find nothing improper. On appeal, Rosenberg J.A. expressed grave concerns about the admissibility of this evidence.[3] Rosenberg J.A. noted that this type of evidence “can be highly suspect and should be admitted at a criminal trial with caution”. This is because “[p]erceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal”: at paras. 25-27. Such evidence is predicated on an often unreliable assumption about how a “normal” person would react to a highly stressful and unusual situation, and because it assumes that outward appearance accurately reflects an individual’s state of mind: R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), at paras. 40-41, rev’d on other grounds in 2007 SCC 49, [2007] 3 S.C.R. 453; see also R. v. Wall (2005), 2005 CanLII 80695 (ON CA), 77 O.R. (3d) 784 (C.A.), at paras. 48-50; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-76; R. v. Morales (2006), 2006 CanLII 19930 (ON CA), 81 O.R. (3d) 161 (C.A.), at paras. 18-19; R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89 (C.A.), at para. 85, leave to appeal refused, [2007] S.C.C.A. No. 96.
[20] The caution called for in Levert is not limited to evidence about the accused’s demeanour in the sense of his appearance or presentation. It also applies to evidence of an accused’s actions or failure to do or say certain things when confronted with an allegation. In R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, following R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252, this Court extended the principles from Levert to an accused’s failure to deny an allegation because, like demeanour evidence, the relevance of the accused’s failure to deny rests on an unreliable assumption about what a “normal” reaction looks like: at paras. 38-40.
[21] This is not to say that the Crown is absolutely prohibited from leading evidence of an accused’s demeanour or reaction when confronted with an allegation, or with news that a victim has disappeared or died. Indeed, there are cases that have admitted such evidence.
[22] For example, in R. v. Staples, 2022 ONCA 266, leave to appeal refused, [2002] S.C.C.A. No. 182, the appellant was convicted of murdering his father and sister. Several witnesses, including the appellant’s ex-wife, testified that the appellant had been seen crying in the days after his father and sister went missing. On appeal, this court held that this demeanour evidence was properly admissible and had probative value. The key witness concerning the appellant’s crying was his ex-wife who was intimately familiar with him and “had a strong basis for believing that his demeanour was unusual”: at para. 39. In the context of the appellant’s stated belief at the time that his sister and brother had just gone away for a few days, the appellant’s demeanour was probative of guilt: at paras. 39-42. Similarly, in Trotta, the appellant was convicted of murdering his eight-month-old son. One of the grounds of appeal concerned the admissibility of testimony from the emergency room physician treating the son, who said that the appellant appeared calm and uninterested. Notwithstanding the caution from Levert, Doherty J.A. writing for this court rejected an argument that the evidence had no probative value given the treating physician’s extensive experience observing parents who had brought their young children to the hospital: at para. 42.
[23] Furthermore, in certain circumstances an accused can be taken as having implicitly adopted an accusation as true based on their conduct or demeanour, or even based on their silence in circumstances that give rise to a reasonable expectation of reply: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-51, leave to appeal refused, [2014] S.C.C.A. No. 500. For example, in R. v. Gordon, 2022 ONCA 799, leave to appeal refused, [2023] S.C.C.A. No. 136, the appellant was convicted of murder. A friend of the victim and the appellant asked the appellant over the phone why he had not attended the victim’s funeral, and told the appellant that she had heard he was the one who killed the victim. The appellant responded: “shut up, shut up, shut up” and “this was not a conversation to be had on the phone”: at para. 13. The trial judge cautioned the jury about the use of this evidence. On appeal, this court found no error in the trial judge’s decision to leave this evidence with the jury because it was open to the jury to find that the appellant’s response to the accusations amounted to an adoption of the accusations as true: at para. 51.
[24] In sum, like evidence about the accused’s demeanour, evidence of an accused’s actions or inactions after being confronted with an allegation or difficult news may be relevant to a live issue in the case and more probative than prejudicial. However, it must be approached with caution. Ultimately, it will be up to the trial judge to remain vigilant for this type of evidence and to exercise their gatekeeping role. Where evidence is not relevant to a live material issue, it should be excluded or the jury should at least be instructed that the evidence has no probative value. Even where the evidence is relevant, trial judges still retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 109-10, per Martin J. (dissenting, but not on these points).
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[32] In this appeal, the appellant does not advance an argument that the evidence ought to have been excluded because he acknowledges that the evidence was put before the jury without objection from defence counsel. However, he argues that the jury should have been instructed that it had no probative value.
[33] I agree. This court in Chafe affirmed the importance of properly instructing the jury on after-the-fact reaction evidence. In Chafe, while Benotto J.A. made no comments on whether the appellant’s response to an allegation should have been admitted in the first place, she observed that at the very least, the trial judge was required to instruct the jury that they should place no weight on the appellant’s response to an undetailed allegation. This would include an instruction that there is no “normal” way for a person to react when faced with an accusation of wrongdoing: at para. 45. A similar instruction should have been given in this case.
[34] A caution is extremely important when this type of evidence is introduced in a criminal trial. That is because jurors cannot be expected to have had experience in being accused, in this case of a historical sexual crime, and it is difficult to predict how a “normal”, innocent person would react in those circumstances: Trotta, at para. 40. This is perhaps particularly so in the interfamilial context, given all the possible specificities of the family’s history, dynamics, and current circumstances.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. Khan
In R. v. Khan (Ont CA, 2024) the Ontario Court of Appeal considered a criminal appeal, here on issues of 'after-the-fact conduct' evidence (aka 'post-offence conduct'):(2) Issue Two: The trial judge did not err in her consideration of the appellant’s apologies as after-the-fact conduct evidence
[42] Evidence of after-the-fact conduct is a form of circumstantial evidence and is admissible if it is relevant to a live, material issue, if its admission would not violate an exclusionary rule of evidence, and if its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107 (per Martin J. dissenting, but not on this point). It is for the trier of fact to determine whether after-the-fact conduct evidence is related to the offence before them, rather than to some other reaction, or other culpable act. The fact that alternative explanations for an accused person’s conduct exist does not necessarily mean that the evidence is no longer relevant. It is only where the overall conduct and context are such that “it is not possible to choose between the available inferences as a matter of common sense, experience and logic” that relevance is lost: Calnen, at para. 124. When “hypothetically it could be one offence or another, common sense and experience may support one inference over the other”: Calnen, at para. 124. . R. v. S.C.
In R. v. S.C. (Ont CA, 2023) the Court of Appeal considers post-offence (ie. 'after the fact') conduct evidence:After-the-Fact Conduct Evidence
[20] The Crown submits that the Facebook message might have been properly used by the jury on the basis that the accused’s after-the-fact conduct – namely, his not responding to the complainant’s message – was behaviour consistent with his guilt. That is, the Crown argues that the jury could properly conclude that the appellant did not respond to the complainant’s message because he knew her statement to be true.
[21] The problem with the Crown’s argument is that evidence of after-the-fact conduct by an accused is properly admissible only if it is logically relevant to a live, material issue in the case; its admission does not offend any other exclusionary rule of evidence; and its probative value exceeds its prejudicial effects: R. v. Gaetan, 2023 ONCA 114, at para. 40. The probative value of after-the-fact conduct evidence depends on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 119, per Martin J. (dissenting, but not on this point); R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42. . R. v. Cargioli
In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. Here the court characterizes evidence of 'after-the-fact conduct' evidence, and it's use (if believed by the jury):[55] In the part of his instructions dealing with various evidentiary rules, the trial judge instructed the jury on after-the-fact conduct at some length. He described the evidence as a form of circumstantial evidence. He told the jury they had to carefully consider any possible explanation for the after-the-fact conduct other than the commission of the offence. He also told them that they could use the conduct as evidence of the commission of an offence only if they rejected any other explanation for the conduct. He reminded the jury to consider other explanations for the after-the-fact conduct before drawing any inference against an accused.
[56] The trial judge told the jury that, with the exception of the evidence that Mr. Morrisson had taken the sword from the scene and disposed of it, none of the after-the-fact conduct identified by the trial judge could assist the jury in determining the level of liability of any of the accused. In other words, with the exception of the “sword” evidence, none of the after-the-fact evidence could help the jury decide between manslaughter and murder, or between second degree murder and first degree murder. The trial judge’s instructions on after-the-fact evidence accurately reflected the governing case law: e.g., R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 107-19.
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[59] The inferences outlined above, while all reasonable, were certainly not the only possible inferences that could be drawn from the evidence that Mr. Morrisson took the sword from the scene and disposed of it. However, the possibility of other inferences does not mean that the evidence loses its potential probative value: Calnen, at para. 112. It was for the jury to decide what inference, if any, should be drawn from the evidence. In making that decision, the jury would no doubt bear in mind the trial judge’s instruction that they could use the evidence of the after‑the‑fact conduct to support the inference of guilt, only after considering and rejecting any other explanation for the conduct. . R. v. Ethier
In R. v. Ethier (Ont CA, 2023) the Court of Appeal considered 'after-the-fact conduct' (aka 'post-conduct evidence') evidence:b) General Principles
[56] After-the-fact conduct evidence is circumstantial evidence that encompasses the statements and actions of the accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence; it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: Calnen, at paras. 106-7, per Martin J. (dissenting, but not on the principles relating to after-the-fact conduct evidence on which she spoke for the majority).
[57] While its admissibility is governed by the same rules as other evidence, after-the-fact conduct evidence poses unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction and informing the jury that they must consider other explanations for the accused’s actions: White (1998), at para. 57; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 24 (“White (2011)”); Calnen, at para. 117.
[58] However, a trial judge may sometimes need to do more and counter a specific reasoning risk by providing a specific caution or a limiting instruction: Calnen, at para. 118. A caution warns the jury to be careful in using the evidence, while a limiting instruction has the goal of preventing the jury from considering evidence with respect to one or more issues at all: White (2011), at paras. 30, 34.
[59] A specific caution or limiting instruction aimed at specific reasoning risk may be required when there is a question about the relevance of the after-the-fact conduct evidence to a particular issue. Relevance is assessed on a case-by-case basis and is fact-driven. After-the-fact conduct evidence will be relevant if it makes a particular inference more likely, as a matter of logic and human experience. But, after-the-fact conduct evidence will not be relevant when the conduct is “equally consistent” with the proposed inference and an alternative inference. Equally consistent means, in this context that the conduct is not capable, as a matter of logic, common sense, and experience, of favouring one inference over another: Calnen, at paras. 106, 108-112 and 124.
[60] Generally, it will be for the jury, assuming it has been appropriately cautioned, to assess the evidence of post-offence conduct in the context of all the evidence and to consider what inference, if any, to draw from it in the context of any explanations: Calnen, at paras. 112, 117, 124, and 137. In some cases, where the conduct is equally consistent with competing inferences, the trial judge should provide a limiting or no probative value instruction to the jury: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145; White (2011), at para. 60. For example, where the accused has admitted to the actus reus of the offence, after-the-fact conduct evidence will often not be relevant to distinguishing between different mens rea, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121.
[61] With that said, there are no bright-line rules against using after-the-fact conduct evidence in determining the accused’s intent or distinguishing between levels of culpability: Calnen, at para. 119; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20. In some cases, such as when an accused’s after-the-fact conduct is out of proportion to an alternative explanation, the evidence may be relevant in discerning an accused’s level of culpability: see Calnen, at paras. 148-50. Even in cases where no limiting instruction is required, it is often appropriate to warn the jury of risks associated with the evidence and to be careful with it: White (2011), at para. 33.
[62] In summary, in providing instructions respecting after-the-fact conduct evidence, it is important that the trial judge set out the use to which the evidence can be put and the inferences that are available to the jury: Calnen, at para. 115. As the discussion above shows, doing so accurately and sufficiently requires providing cautions to avoid risks associated with the evidence so that properly informed jurors may evaluate it with care, and in some cases a limiting instruction to counter any specific reasoning risk: White (1998), at para. 57; White (2011), at para. 33; Calnen, at paras. 116-118.
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[69] The charge did not use language to caution the jury about the use of after-the-fact conduct evidence and thus to counter the “jump too quickly” risk. For example, it did not tell the jury that such conduct “has only an indirect bearing on the issue of guilt”. It did not tell them to be “careful” about using such evidence to infer guilt as there “might be other explanations for that conduct”. It did not tell them to consider alternative explanations for the conduct before drawing an inference of guilt or that they could use the evidence to support an inference only if they rejected any other explanation for the conduct: see for example, White (2011), at para. 35; R. v. Yabarow, 2023 ONCA 400, at paras. 32 and 56; see also David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), Final 27-A, at p. 362.
[70] The charge did not contain a limiting instruction to inform the jury that the after-the-fact conduct evidence could only be used on certain issues but not at all on others: see Yabarow, at para. 33. Nor did it contain any specific caution in the form of an express warning cautioning the jury on using it in respect of certain issues: see White (2011), at paras. 33, 35.
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d) Discussion
[71] In my view, the trial judge erred in law by inviting the jury to consider, without limitation or caution, the after-the-fact evidence and by reiterating, without limitation or caution, the Crown’s overly-broad position on the use of the after-the-fact conduct evidence. The effect of the charge was to tell the jury that they could use all the after-the-fact conduct evidence to distinguish between the offences of murder and manslaughter, not just to assess the effects of intoxication.
[72] I agree with the Crown’s position that some of the after-the-fact conduct evidence was relevant to the effect of intoxication. The appellant’s conduct immediately following the stabbing shed light on his level of cognitive impairment at the time of the offence. To that extent, the evidence was relevant to whether the appellant lacked the requisite intent for murder due to intoxication.
[73] But the jury was not told that this was the extent to which the evidence was helpful. Nor were they told that since the Crown and the defence pointed to factors beyond intoxication as bearing on the appellant’s state of mind (as the rolled-up instruction made clear), the after-the-fact conduct evidence may not have been helpful in determining which of those factors were present, and to what degree, or how they might have affected the appellant’s state of mind. In other words, other than the issue of intoxication the jury was not given any guidance on whether the appellant’s after-the-fact conduct could help them distinguish between murder and manslaughter, nor instructed not to use it beyond intoxication because it was otherwise equally consistent with the state of mind required for either offence. Nor was the jury even warned, as it was in White (2011), to be careful with the evidence as it bore on these issues.
[74] This court has highlighted on previous occasions the necessity of making the distinction between using after-the-fact conduct evidence to rebut the effect of intoxication and using the evidence to otherwise distinguish between manslaughter and murder, and appropriately instructing the jury to observe the distinction: see R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at pp. 631-32; R. v. Stiers, 2010 ONCA 382, 264 O.A.C. 305, at paras. 59-62, leave to appeal refused, [2011] S.C.C.A. No. 150. The appellant’s flight from the scene, disposal of the knife, and travel to various locations would not as a matter of logic, common sense, and experience assist the jury in its assessment of whether this was an intentional homicide beyond assisting them to evaluate the effect of intoxication. But even if it could, the jury was not told to even advert to whether in this case it did or cautioned about how to go about making that determination.
[75] In this case, there was a real risk that the jury would impermissibly use the after-the-fact conduct evidence to conclude that the appellant was guilty, as the Crown alleged, because he acted as though he was guilty of something. They were given no cautionary instructions to counteract the risk of a “jump too quickly from the evidence of [after-the-fact] conduct to an inference of guilt” without considering alternative explanations. They were given no instructions on the limited permissible use of the evidence. The Crown’s closing submissions expressly invited the jury to use the evidence without limits, and the trial judge misdirected the jury by inviting such use and reiterating the Crown’s erroneous submissions in the charge itself. Nothing else in the charge mitigated the risk of improper reasoning.
[76] The jury was not accurately and sufficiently instructed on the use of after-the-fact conduct evidence. The verdict cannot stand.
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