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Evidence - Demeanour Evidence'Demeanour evidence' means a witness' observations of the emotional state of a person that they are testifying about. 'Witness demeanour' (a separate topic) means a witness' demeanour while giving testimony.
. R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court comments on post-conduct evidence, which in this case also constituted 'demeanour' evidence:[104] In his charge to the jury, the trial judge summarized the Crown’s position and gave a general instruction on after-the-fact conduct evidence in reference to the flight from the scene but did not give any specific instruction with respect to Mr. Chizanga’s demeanour in the cab. Mr. Chizanga contends that demeanour evidence, as a subset of after-the-fact conduct evidence, requires a special caution where it can give rise to multiple inferences. According to Mr. Chizanga, the jury should have been instructed on how to consider what inference, if any, to draw from the evidence of his demeanour.
[105] According to the respondent, the instructions on after-the-fact conduct were sufficient and a specific instruction on Mr. Chizanga’s demeanor was not required. Read as a whole, the instructions directed the jury on how to properly evaluate all the after-the-fact conduct evidence and was not underinclusive. The respondent rejects the suggestion that, as a result of this omission, the jury was invited to infer guilt on the basis that Mr. Chizanga appeared calm in the cab.
[106] Evidence of after-the-conduct includes evidence of what an accused said and did after the offence was allegedly committed. Because it takes in a vast array of circumstances, the legal treatment of after-the-fact conduct generally is highly context and fact-specific: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J. (dissenting, but not on this point). . R. v. D.B.
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers evidence of the accused's after-the-fact demeanour, and it's similarity to post-conduct evidence:(b) Applicable Legal Principles
[19] Evidence of the accused’s demeanour upon being confronted with an allegation is notoriously unreliable: see R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.). In Levert, the complainant’s foster mother confronted the appellant with an accusation that he had touched the complainant inappropriately. The appellant denied the allegations, but according to the complainant’s foster mother, was “very, very, very calm” and “not on the defensive at all”. The appellant testified that he was generally a calm person and at the time the allegation was made he felt confident that the foster mother would find nothing improper. On appeal, Rosenberg J.A. expressed grave concerns about the admissibility of this evidence.[3] Rosenberg J.A. noted that this type of evidence “can be highly suspect and should be admitted at a criminal trial with caution”. This is because “[p]erceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal”: at paras. 25-27. Such evidence is predicated on an often unreliable assumption about how a “normal” person would react to a highly stressful and unusual situation, and because it assumes that outward appearance accurately reflects an individual’s state of mind: R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), at paras. 40-41, rev’d on other grounds in 2007 SCC 49, [2007] 3 S.C.R. 453; see also R. v. Wall (2005), 2005 CanLII 80695 (ON CA), 77 O.R. (3d) 784 (C.A.), at paras. 48-50; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-76; R. v. Morales (2006), 2006 CanLII 19930 (ON CA), 81 O.R. (3d) 161 (C.A.), at paras. 18-19; R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89 (C.A.), at para. 85, leave to appeal refused, [2007] S.C.C.A. No. 96.
[20] The caution called for in Levert is not limited to evidence about the accused’s demeanour in the sense of his appearance or presentation. It also applies to evidence of an accused’s actions or failure to do or say certain things when confronted with an allegation. In R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, following R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252, this Court extended the principles from Levert to an accused’s failure to deny an allegation because, like demeanour evidence, the relevance of the accused’s failure to deny rests on an unreliable assumption about what a “normal” reaction looks like: at paras. 38-40.
[21] This is not to say that the Crown is absolutely prohibited from leading evidence of an accused’s demeanour or reaction when confronted with an allegation, or with news that a victim has disappeared or died. Indeed, there are cases that have admitted such evidence.
[22] For example, in R. v. Staples, 2022 ONCA 266, leave to appeal refused, [2002] S.C.C.A. No. 182, the appellant was convicted of murdering his father and sister. Several witnesses, including the appellant’s ex-wife, testified that the appellant had been seen crying in the days after his father and sister went missing. On appeal, this court held that this demeanour evidence was properly admissible and had probative value. The key witness concerning the appellant’s crying was his ex-wife who was intimately familiar with him and “had a strong basis for believing that his demeanour was unusual”: at para. 39. In the context of the appellant’s stated belief at the time that his sister and brother had just gone away for a few days, the appellant’s demeanour was probative of guilt: at paras. 39-42. Similarly, in Trotta, the appellant was convicted of murdering his eight-month-old son. One of the grounds of appeal concerned the admissibility of testimony from the emergency room physician treating the son, who said that the appellant appeared calm and uninterested. Notwithstanding the caution from Levert, Doherty J.A. writing for this court rejected an argument that the evidence had no probative value given the treating physician’s extensive experience observing parents who had brought their young children to the hospital: at para. 42.
[23] Furthermore, in certain circumstances an accused can be taken as having implicitly adopted an accusation as true based on their conduct or demeanour, or even based on their silence in circumstances that give rise to a reasonable expectation of reply: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-51, leave to appeal refused, [2014] S.C.C.A. No. 500. For example, in R. v. Gordon, 2022 ONCA 799, leave to appeal refused, [2023] S.C.C.A. No. 136, the appellant was convicted of murder. A friend of the victim and the appellant asked the appellant over the phone why he had not attended the victim’s funeral, and told the appellant that she had heard he was the one who killed the victim. The appellant responded: “shut up, shut up, shut up” and “this was not a conversation to be had on the phone”: at para. 13. The trial judge cautioned the jury about the use of this evidence. On appeal, this court found no error in the trial judge’s decision to leave this evidence with the jury because it was open to the jury to find that the appellant’s response to the accusations amounted to an adoption of the accusations as true: at para. 51.
[24] In sum, like evidence about the accused’s demeanour, evidence of an accused’s actions or inactions after being confronted with an allegation or difficult news may be relevant to a live issue in the case and more probative than prejudicial. However, it must be approached with caution. Ultimately, it will be up to the trial judge to remain vigilant for this type of evidence and to exercise their gatekeeping role. Where evidence is not relevant to a live material issue, it should be excluded or the jury should at least be instructed that the evidence has no probative value. Even where the evidence is relevant, trial judges still retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 109-10, per Martin J. (dissenting, but not on these points).
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[32] In this appeal, the appellant does not advance an argument that the evidence ought to have been excluded because he acknowledges that the evidence was put before the jury without objection from defence counsel. However, he argues that the jury should have been instructed that it had no probative value.
[33] I agree. This court in Chafe affirmed the importance of properly instructing the jury on after-the-fact reaction evidence. In Chafe, while Benotto J.A. made no comments on whether the appellant’s response to an allegation should have been admitted in the first place, she observed that at the very least, the trial judge was required to instruct the jury that they should place no weight on the appellant’s response to an undetailed allegation. This would include an instruction that there is no “normal” way for a person to react when faced with an accusation of wrongdoing: at para. 45. A similar instruction should have been given in this case.
[34] A caution is extremely important when this type of evidence is introduced in a criminal trial. That is because jurors cannot be expected to have had experience in being accused, in this case of a historical sexual crime, and it is difficult to predict how a “normal”, innocent person would react in those circumstances: Trotta, at para. 40. This is perhaps particularly so in the interfamilial context, given all the possible specificities of the family’s history, dynamics, and current circumstances.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. Marsh
In R. v. Marsh (Ont CA, 2023) the Court of Appeal distinguishes two types of demeanour evidence:[19] The word “demeanor” may be used in two contexts. One is the demeanor of a witness when testifying in court. A trial judge may consider the complainant’s demeanor when testifying, when assessing credibility, provided the judge does not place undue emphasis on it: R. v. J.M., 2023 ONCA 472, at para. 3.
[20] However, in this case, the relevant evidence was the complainant’s emotional state following the alleged incident, her out-of-court demeanor at the time. That is properly admissible circumstantial evidence that a trial judge is entitled to consider. The weight to be given to it is in the discretion of the trial judge: R. v. Varcoe, 2007 ONCA 194, at para. 33; R. v. J.A., 2020 ONCA 491, at paras. 16-17; R. v. Rose, 2021 ONCA 408, at para. 22; R. v. Vansnick, 2022 ONCA 822, at para. 5. In this case, the trial judge committed no error in considering this evidence in addition to other confirmatory evidence. . R. v. R.K.
In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered witness 'demeanour' evidence:[39] While reliance on the demeanour of witnesses should be approached with caution, it is not improper to consider demeanour in assessing credibility: R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89 and R. v. J.L., 2022 ONCA 271, at para. 6. . R. v. Staples
In R. v. Staples (Ont CA, 2022) the Court of Appeal briefly considered demeanour evidence:[38] The starting point is that although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence. It may be admitted where a witness has a basis for believing that an accused’s demeanour was unusual: R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Short, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 54.
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