“Consciousness of guilt” - the label should be rejected

R. v. Hall, 2010 ONCA 724, released today online, deals with a number of issues: jury instructions, fabrication of evidence and the seemingly ever present "consciousness of guilt".

Despite the rejection of the concept because of the danger it poses of misleading a jury, the phrase continues to be used - indeed, this writer saw it in Crown materials submitted to Court last week.

Nevertheless, even if the simplistic concept of "consciousness of guilt" is ignored, post offence conduct can be very significant evidence if properly handled. The Court explains its proper scope as follows:

  ii) The law on post-offence conduct evidence

[130]          The significance of post-offence conduct evidence and the proper approach to such evidence by a jury, including the rejection of the traditional label, "consciousness of guilt", was explained by the Supreme Court of Canada in R. v. White (1998), 125 C.C.C. (3d) 385. The court adopted the following succinct explanation of the logical significance of post-offence conduct by Weiler J.A. from R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.):

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has 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.

[131]          However, the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White at para. 22, "susceptible to jury error". 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.

[132]          The court in White observed that the label "consciousness of guilt" should not be used for two reasons. First, the label reflects a conclusion of guilt before any analysis or weighing of the available inferences from the conduct. Second, it suggests that this evidence is a special category, rather than just a piece of circumstantial evidence to be weighed with all of the other evidence.

[133]          The Supreme Court in White went on to reject the defence position that the criminal standard of proof beyond a reasonable doubt, which applies to the ultimate verdict, should also be applied to evidence of post-offence conduct. The court reiterated the basic proposition that the criminal standard of proof applies only to the final determination of guilt or innocence and not to individual items of evidence, including post-offence conduct evidence.  Therefore, the jury does not first determine beyond a reasonable doubt whether the Crown's interpretation of the impugned post-offence conduct is the correct one before considering that evidence in the context of all the other evidence. It may be only in the latter context that the jury can fully and properly assess the significance of the accused's conduct. As stated by the court at para. 57, it is "preferable simply…to leave evidence of flight or concealment evaluated, but somewhat at large until the final stage of putting all the evidence together and seeing if it proves the case beyond a reasonable doubt."

[134]          The court explained, at para. 54, that applying the criminal standard of proof to post-offence conduct would "set the deliberation process backwards":

[I]nstead of directing the jury to use the evidence of post-offence conduct in their determination of guilt or innocence, it would require them to decide the ultimate issue as a predicate to using the evidence in the first place. It would collapse the entire jury deliberation into an analysis of the significance of a single act of the accused, and would make all the other evidence in the case merely supportive of that determination. Such an instruction would have the perverse effect of transforming any piece of evidence of after-the-fact conduct, no matter how minor in the scheme of the Crown's case, into crucial evidence.

[135]          The court did not articulate specific language to be used in instructing juries on how to assess and approach evidence of post-offence conduct. However, in the course of deciding the issue of the standard of proof that should be applied by the jury to post-offence conduct evidence, the court suggested a number of explanations and cautions that a trial judge should give to the jury as part of the charge.

[136]          The trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct.  The trial judge must also instruct the jury that "they should reserve their final judgment about the meaning of the accused's conduct until all the evidence has been considered in the normal course of their deliberations":  White, at para. 57. 

[137]           As noted by the court at para. 21, post-offence conduct evidence is like other pieces of circumstantial evidence that may be subject to competing interpretations. To meet the circumstantial evidence test, "[it] must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion."

[138]          However, it is unlike other pieces of circumstantial evidence in a very significant way. Other circumstantial evidence, such as the classic example of wet ground in the morning, need only be consistent with a conclusion that a certain fact occurred, e.g., that it rained overnight. That fact might be an important piece of the Crown's case. But it is just one piece that, together with others, may prove guilt beyond a reasonable doubt. The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category