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Evidence - Post-Offence Conduct (2). 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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