Sunday, December 8, 2013

Specific degree of culpability not shown by post offence conduct

R. v. Jaw  2009 SCC 42:

[39]           In sum, Vertes J.'s reference to the appellant's post-offence conduct in his charge to the jury is not an error capable of affecting the legality of the verdict.  In fact, both the Crown and the trial judge could be said to have underestimated, to the appellant's advantage, the significance of the appellant's actions following the shooting.  Vertes J. failed to give full effect in his charge to the Crown's argument that the appellant's actions — all revolving around the theatrics of a suicide attempt — revealed a lack of sincerity and credibility that the jury could take into account when assessing the veracity of the appellant's claim to have been so badly affected by the pepper spray that he could not remember the events leading up to the shooting.  It was entirely open to the Crown to engage in this line of reasoning at trial.  While post-offence conduct cannot  usually serve on its own as a basis for inferring the specific degree of culpability of an accused person who has admitted committing an offence (R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145; R. v. Marinaro, [1996] 1 S.C.R. 462; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at p. 631), it can be used, more generally, to impugn the accused person's credibility (R. v. White, [1998] 2 S.C.R. 72, at para. 26). 

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