Post offence conduct

R. v. Angelis, 2013 ONCA 70, released this morning, has a very helpful summary of the law on post-offence conduct or what used to be called consciousness of guilt:

[51]       An accused’s post-offence conduct is generally admissible to show 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: R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A), at p. 629. 

[52]       However, evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this case, the accused has admitted to committing the actus reus of an offence and the Crown is relying on the post-offence conduct to demonstrate a specific level of intent.  Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to the accused’s state of mind during the commission of the criminal act.  That people will generally behave one way after they kill someone purposefully and another way after they kill someone accidentally is often a dubious assumption.

[53]       Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal, including this court, have held that an accused’s post-offence conduct may be probative of an accused’s culpability, but not of the level of that culpability.  These courts have so held because the accused’s post-offence conduct is as consistent with an inference that the accused committed manslaughter as it is with an inference that the accused had the intent for murder.  Where self-defence is raised as a defence, an accused’s post-offence conduct is circumstantial evidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence.  But, ordinarily, trial judges have been obliged to instruct juries that post-offence conduct evidence cannot be used to infer that the accused committed murder rather than manslaughter: see R. v. Arcangioli, [1994] 1 S.C.R. 129, at pp.145-146; R. v. Marinaro, [1996] 1 S.C.R. 462, adopting the dissenting reasons in (1994), 95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Peavoy, at para. 34; R. v. White (1998), [1998] 2 S.C.R. 72, at p. 89; R. v. Swanson, 2002 BCCA 528, 168 C.C.C. (3d) 1, at para. 18;R. v. Rodrigue, 2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37.

[54]       Recently, in R. v. White (2011), 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme Court considered the use of post-offence conduct to support an inference of intent.  Rothstein J., writing for the majority, clarified at para. 31 of his reasons that post-offence conduct should be treated like any other type of circumstantial evidence:

Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence”, the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence.  In particular, to be admissible, such evidence must be relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. hearsay rule); it may also be excluded pursuant to the exercised of a recognized judicial discretion, such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value.  These same principles also determine the need for and scope of a limiting instruction. [Internal citations omitted.]

[55]       Post-offence conduct, therefore, is not subject to blanket rules.  It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties.  Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue.  Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it.  In the words of Rothstein J., at para. 36 of R. v. White (2011), the overriding question is this: what do “logic and human experience” suggest that a jury can legitimately or rationally infer from the accused’s post-offence conduct?