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Evidence - Post-Offence Conduct (3). R. v. Pierre
In R. v. Pierre (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction for second-degree murder.
The court characterized 'after-the-fact conduct' evidence, here in 'consciousness of guilt' and 'callous disregard' contexts:[11] .... To be admissible, “after-the-fact conduct evidence” must, as a matter of logic and human experience, allow a trier-of-fact to draw inferences based on a person’s words or actions that are relevant to a material issue in the case: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 107, 111; R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 102.
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[72] The first potential problem with after-the-fact conduct evidence showing consciousness of guilt - the prejudicial reasoning concern - arises because such evidence can raise a “substantial risk of jury error” by causing jurors to “jump too quickly … to an inference of guilt”, without considering all of the evidence: White, (2011), at para. 23. In describing this danger in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 143, Major. J., for the court, cited a passage from McCormick on Evidence, explaining that “the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial” that the evidence may not be used properly. He also referenced the decision in Gudmondson v. King, (1933), 1933 CanLII 415 (SCC), 60 C.C.C. 332, at pp. 332-33 (S.C.C.), where the court found error on the part of a judge in not warning the jury to be very cautious in a manslaughter case before drawing a consciousness of guilt inference from the failure of the accused to stop to give aid to the individuals who had been injured, since this evidence “was likely to create impressions which might preclude or gravely militate against a judicial examination by the jury of the grounds of defence”.
[73] To be clear, it will often be permissible for triers of fact to infer from an accused person’s after-the-fact conduct that they were acting as if conscious of their own criminal conduct, and to rely on this inference to support a finding of guilt: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at para. 26. However, given how inflammatory such evidence can be, judicial assistance may be required in a jury trial to reduce the risk of prejudicial reasoning. In most cases the risk that jurors will draw a direct inference of guilt from such evidence can be addressed by ensuring that jurors are aware of and consider alternative explanations for the allegedly evasive conduct, and by providing a warning to them to be cautious with such evidence, and to reserve final judgment about the meaning of the accused’s conduct until all the evidence has been considered: White (2011), at para. 24. Whether such warnings are required, and the required content of such warnings will depend on the “actual evidence and the specific risks it poses in the case at hand”: McGregor, at para. 108.
[74] Here, the trial judge outlined alternative explanations and she advised the jury to consider the after-the-fact conduct evidence alongside all of the other evidence, but she did not specifically caution them against the risk of giving undue weight to the consciousness of guilt inference, or advise them that such evidence has only an indirect bearing on guilt or otherwise warn them against using the after-the-fact conduct evidence to draw a direct inference of guilt, as is sometimes required: Ethier, at para. 69; R. v. Lumberjack, 2017 SKCA 106, 357 C.C.C. (3d) 263, at para. 41.
[75] As indicated, the second problem in using evidence of concealment of responsibility evidence can arise if there is a live issue as to the level of guilt of the accused. In most such cases, an inference that the accused was conscious of their own guilt will not logically assist in identifying which of the possible offences the accused faces that they are conscious of having committed: R. v. Angelis, 2013 ONCA 70, 300 O.A.C. 367, at paras. 52-53. This will be so where, in the circumstances and context of the case, the acts of concealment or flight can be equally explained or are equally consistent with an attempt by the accused to evade responsibility for any one of the offences that may have been committed: Calnen, at para. 124; Ethier, at para. 59. But there is a risk that jurors may not recognize the limited utility of such evidence and will illogically and unfairly treat that evidence as proof that the accused was conscious of his guilt on the offence charged.
[76] For example, in Arcangioli, the appellant admitted that he committed a common assault by punching the victim, but he denied that he committed an aggravated assault by stabbing the victim. There was evidence supporting the possibility that another young man may have done so. The appellant’s level of guilt was therefore a live issue in the case. To prove the appellant’s guilt, the Crown relied on his flight from a location where the victim had been stabbed as proof that he was conscious of his own guilt. The problem was that this evidence could not show whether the appellant fled because he was conscious of having committed a common assault by punching the victim, or because he was conscious of having committed an aggravated assault by stabbing the victim, the offence that he was charged with committing, as his flight was equally consistent with both possibilities. Since the appellant admitted his culpability for common assault, the evidence of his flight had no probative value and the trial judge erred by failing to tell this to jurors: Arcangioli, at paras. 44-45. Many cases have reaffirmed the need for a limiting instruction where the level of guilt of the accused is a live issue and the evidence is incapable of identifying the offence the accused committed: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 23; White (2011), at para. 37; Calnen, at para. 120; Angelis, at para. 53; Ethier, at para. 60; and Peavoy, at paras. 32, 33. The need for a limiting direction is particularly acute where the after-the-fact conduct is a dominant feature of the evidence or formed a significant part of the case: Robinson, at para. 63; Peavoy, at para. 35. Absent a limiting direction, there may be a real risk of jurors inferring that “the appellant was guilty, as the Crown alleged, because he acted as though he was guilty of something”: Ethier, at para. 75; R. v. Nagy, 2023 ONCA 184, 166 O.R. (3d) 545, at para. 26. At paras 77-85 the court analyses this law in light of the case facts.
Next, the court considers the role of after-the-fact conduct on the issue of 'callous disregard':C. The Callous Disregard Instruction
[86] The trial judge directed jurors relating to several of the acts Mr. Pierre engaged in in the aftermath of the killing, specifically, his acts of going into the living room to have a beer and smoke; going to the Beer store while bringing a beer; going to Mr. Border’s house and the Keg restaurant where he ordered food and drink, and then going to the Casino and eating a ribs dinner. The material passage, which I quote in para. 42 above, warrants reproduction here:Consider what, if anything, these actions tell you about his intention at the time of the kill. Are these actions the product of a callous disregard for the fact that he had just killed someone, or are these actions the product of what he called a state of shock? Were his actions those of someone who had carried out his intentions and was now moving on to other things, or were his actions the product of what he called a state of shock? [87] Mr. Pierre argues that there is a real risk that jurors could interpret this passage as an invitation to treat this after-the-fact conduct as evidence of Mr. Pierre’s intention to kill, on the theory that callous disregard after causing the death of another is consistent with the accused having had an intention to kill. He argued, relying on Angelis, that proof of bizarre or strange behaviour, what Laskin J.A. referred to as “demeanour” evidence, is not logically probative of whether the accused has committed a culpable act (Angelis, at para. 59) and is incapable of supporting a rational inference of intent to kill (Angelis, at para. 56), yet “[j]urors tend to focus on this sort of evidence”. “They find it cogent and significant”: Angelis, at para. 64.
[88] The law has stopped short of holding that after-the-fact conduct demeanour evidence can never serve as evidence of an individual’s state of mind. As Charron J. noted in White (2011), at para. 126, and as this case illustrates, there will be circumstances where it is the accused that is attempting to rely on after-the-fact demeanour as evidence of innocence. Still, after-the-fact demeanour evidence is widely recognized to be an inherently dangerous form of proof because it assumes a “normal” range of reaction in dangerous situations, and that outward conduct will accurately reflect an individual’s state of mind or emotional reaction: R. v. Trotta, (2004), 2004 CanLII 34722 (ON CA), 191 O.A.C. 322 (Ont. C.A.), at paras. 40-41, rev’d on other grounds, 2007 SCC 49, 232 O.A.C 377; and see White (2011), at paras. 75-76. As Charron J. also noted in White (2011), at para. 107, depending on the specific context of the case, demeanour evidence may call for a special caution or be subject to an exclusion order, but it may not always be unavailable. In Trotta, at para. 41, Doherty J.A. held that for demeanour evidence to be used as proof of the state of mind of the accused “[t]he circumstances surrounding the proffered evidence must be such as to make the evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind.”
[89] In my view, evidence of callous after-the-fact behaviour by Mr. Pierre cannot make that grade. I can see no logical link that would rationally enable an inference of intent to kill to be drawn from the behaviour that was identified by the trial judge in the impugned passage. Moreover, even if callous disregard could serve logically as evidence of Mr. Pierre’s state of mind at the time of the killing, it would be as logically consistent with Mr. Pierre having been callous about committing culpable manslaughter as it is with him being uncaring about having committed a murder. Mr. Pierre’s “callous behaviour”, if that is what it was, could not properly be used in this case. I am confident that the trial judge did not intend to invite jurors to use displays of callous disregard by Mr. Pierre after the killing as evidence of his intention to kill but I agree with Mr. Pierre that there is a realistic prospect that jurors may interpret her charge as inviting them to do so.
[90] To be clear, I would not have come to this conclusion if the trial judge had instructed the jury in unambiguous terms that before accepting Mr. Pierre’s claim that his post-offence conduct was indicative of his irrational mindset that day, they should consider the alternative possibility that this conduct might simply be consistent with callous disregard for what he had done, which is what I suspect she was intending to communicate. Had that been the clear message, I would have accepted that jurors could be trusted to use a finding of callous disregard solely as a shield against the inference Mr. Pierre was seeking, and not as a sword to prove his guilt. But given its wording, the impugned passage in the charge can reasonably be taken as an invitation to use post-offence acts of callous disregard as affirmative evidence that Mr. Pierre was acting consistently with having committed a murder. This risk arises because the impugned passage begins with this language: “Consider what, if anything, these actions tell you about [Mr. Pierre’s] intention at the time of the killing”. It then goes on to offer as an option that these actions may be the product of callous disregard for the fact that he had just killed someone, and that they may be “the actions of someone who carried out his intentions and was now moving on to other things”. In my view, this passage raises the realistic risk I have identified. I see nothing in the balance of the charge that would steer jurors away from engaging in this impermissible reasoning.
[91] In my view, this part of the charge therefore constitutes a misdirection. . R. v. Pierre
In R. v. Pierre (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction for second-degree murder.
Here the court considers evidentiary 'reasoning rules', here in a mixed jury charge/after-the-fact conduct/circumstantial evidence context:THE GENERAL LEGAL PRINCIPLES
[50] The rules of evidence are generally thought of as being about admissibility. That is their characteristic role, but many of the rules of evidence address the use that can or should be made of evidence that has been admitted (the “reasoning rules”). The admission of the after-the-fact conduct evidence in this case is not in issue before us. This appeal concerns the reasoning rules that apply to after-the-fact conduct evidence. Those rules, which are most readily seen in jury trials in the form of required or suggested jury directions, originated to address unique reasoning risks that after-the-fact conduct evidence can give rise to: Calnen, at para. 116; R. v. Ethier, 2023 ONCA 600, 30 C.C.C. (3d) 121, at para. 57.
[51] Specifically, as circumstantial evidence, after-the-fact conduct evidence is often capable of supporting inferences not only about the material issue for which it has been received but for other purposes. Judicial experience has shown that some of the inferences that it may provoke are illogical or unfair, and that after-the-fact conduct evidence can be prone to receiving more weight than it warrants, in part because much of it discloses discreditable conduct by the accused. It can cause jurors to “jump to questionable conclusions” without the assistance of shared judicial experience: Calnen, at para. 116. Unless educated about the relevant risks, jurors are not apt to identify them and may engage in unfair reasoning. The law has therefore developed both “warnings” (cautionary instructions alerting jurors to reasoning dangers), and “limiting instructions” (directions to jurors to limit the use to which they put the evidence by telling them that “they must not consider the evidence for one or several purposes”): R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (“White (2011)”), at para. 34. Depending on the circumstances of the case, the failure to give either a warning or a limiting instruction can constitute reversible error where the failure to provide a warning or limiting instruction may leave the door open to juror reasoning errors.
[52] However, there are no bright-line rules relating to what a jury charge must include where after-the-fact conduct evidence is admitted. It is not the case that special warnings are required relating to all after-the-fact conduct evidence: R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at para. 19, citing White (2011), at paras. 105-107. Nor are limiting instructions required in every case. The requirements of the charge are based on the circumstance of the case, in light of the nature of the after-the-fact evidence and the trial as a whole, including the issues it presents, the entirety of the evidence, the relevance of the after-the-fact conduct evidence, and the submissions that have been made: Ethier, at para. 62; Calnen, at para. 118. . R. v. Pereira
In R. v. Pereira (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here in a murder trial where the "primary issue was whether the appellant was not criminally responsible (“NCR”)", but the defendant was found guilty (and thus criminally responsible).
Here the court considered an issue of 'post-offence conduct', here in an NCR context:[33] This Court provided helpful guidance on the treatment of post-offence conduct in the NCR analysis in R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 46, at para. 142:In the NCR context, after-the-fact conduct may be relevant to an assessment of an accused’s NCR defence. Evidence, for instance, that an accused concealed the weapon or fled the scene of the offence may bear upon the accused’s capacity to appreciate the wrongfulness of their conduct. At the same time, however, after-the-fact conduct is often highly ambiguous and carries the risk that the trier of fact may “mistakenly leap from such evidence to a conclusion of guilt” without taking into account alternative explanations for the accused’s behaviour. Like any other evidence, after-the-fact conduct “takes on its full significance and probative value only in the context of the other evidence in the case”. [Citations omitted.] [34] In Worrie, the trial judge relied, in part, on the appellant’s after-the-fact conduct to discount expert opinions and reject the appellant’s NCR defence. In that case, the unanimous and uncontroverted expert opinions were that the appellant’s after-the-fact conduct was attributable to the fact that he understood that his actions were legally wrong but that his illness affected his ability to perceive that his actions were morally wrong. This court found that, although not required in every case, in the face of uncontradicted expert opinion, the trial judge should have examined why he rejected the expert’s explanation for the appellant’s after-the-fact conduct, and concluded that the only inference that could be drawn from the conduct was that the appellant in that case knew his actions were morally wrong.
[35] This case may be distinguished. Here, the trial judge rejected Dr. Gojer’s expert evidence for the reasons set out above, and there was no consensus as to the implications of the appellant’s post-offence conduct. The trial judge found the distinction between moral and legal wrongfulness in this context to be “virtually indiscernible.” In my view, in the context of this case, the trial judge appropriately relied on the appellant’s post-offence conduct, and particularly his attempts to conceal evidence of the crime, and his admission that he had done something “bad.”
[36] The trial judge was entitled to consider the post-offence conduct in considering whether the appellant knew that what he did was morally wrong. In doing so, the trial judge was not required to conclude that this finding was the only possible explanation for the appellant’s conduct.
[37] Further, this post-offence conduct was only part of the evidence that the trial judge considered. He also considered evidence that the appellant had lied, and evidence that Ms. Horne intended to break up with the appellant.
[38] I see no error in the trial judge’s consideration of the post-offence conduct, as part of his determination that the appellant knew that his actions were morally wrong. . R. v. Scordino
In R. v. Scordino (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal from a murder conviction.
The court considered issues of post-offence conduct (here called 'after-the-fact conduct'), in the context of a jury charge:[59] After-the-fact conduct evidence is a type of circumstantial evidence that can pose unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction and informing the jury that they must consider other explanations for the accused’s actions: White (1998), at para. 57; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 24 (“White (2011)”); Calnen, at para. 117.
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