Post-offence conduct

R. v. Rodgerson, 2014 ONCA 366:

[50]       Post-offence conduct is potentially circumstantial evidence of a fact in issue.  Its relevance depends on whether, considered in the context of the rest of the evidence, the issues raised at trial and the positions of the parties, it makes the existence or non-existence of a fact in issue more likely: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (White #2); R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at pp. 628-29; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 74;R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 142-43.  Like all circumstantial evidence, post-offence conduct may be relevant to some issues and not to others.  Relevance to one material issue is generally a ticket to admissibility. Thus, evidence of flight from the scene of an assault is relevant to the issue of identity as it is more likely that the individual who fled the scene was the perpetrator of the assault.  Evidence of flight is, however, irrelevant to the nature of the assault inflicted as flight does not make it more likely that the person who fled stabbed rather than struck the victim: see Arcangioli.  Like other evidence, if evidence of post-offence conduct is relevant to one fact in issue but not to others, a limiting instruction to the jury may be necessary.     

[51]       Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue.  If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence: R. v. Allen, 2009 ABCA 341, 15 Alta. L.R. (5th) 1, at paras. 67-68, aff'd, 2010 SCC 42, [2010] 2 S.C.R. 648.