Evidence of Post-Offence Conduct
A trier-of fact may draw
reasonable factual inferences from the post-offence conduct of an accused.
As with any kind of
circumstantial evidence, the inferences to be drawn from post-offence conduct
will depend on the nature of the conduct, the fact that is sought to be inferred
from that conduct, the position of the parties, and the totality of the
evidence. Inference drawing is situation-specific and is not amenable to a set
of preset rules that categorize certain kinds of post-offence conduct as always
relevant to, or never relevant to, a particular fact in issue.
R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51 at para. 33:
Evidence of an accused’s words
and conduct after a crime has been committed may provide circumstantial
evidence of an accused’s complicity in that offence. The inference involved
looks backwards from the later words or conduct to the alleged conduct said to
constitute the crime.
No special rule applies to evidence of post-offence words
or conduct: R. v. White, 2001 SCC 13 (CanLII), 267 C.C.C. (3d) 453, at paras. 38, 105 and 137, although
case-specific instructions may be required where the relevance of the evidence
on a particular issue is not readily apparent and the natural inclinations of
the jury might lead it astray: R. v. Rodgerson, 2015 SCC 38 (CanLII), [2015] 2 S.C.R. 760, at para. 34.
Lies as Post-Offence Conduct
The distinction between out-of-court exculpatory statements
that are disbelieved and those that are concocted/fabricated
Among the items of evidence
that may be relied upon as evidence of post-offence conduct is evidence of
out-of-court lies told by an accused. But the law is careful to distinguish
between out-of-court exculpatory statements, such as those that reveal an
alibi, which are disbelieved, thus rejected by the trier of fact, and those
that the trier of fact finds are concocted or fabricated:
R. v. O’Connor (2002),
2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 17; R. v.
Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at para. 15, leave to
appeal to SCC refused, [1998] S.C.C.A. No. 450.
This distinction takes cognizance
of the burden of proof and helps ensure that the trier of fact properly applies
the burden of proof where the statements of an accused are tendered in
evidence: O’Connor, at para. 19.
In many cases, an inference of
fabrication will follow logically from mere disbelief of an accused’s
exculpatory statements. But the policy that underpins the distinction between
disbelief and fabrication militates against using disbelief to infer
fabrication. A finding of fabrication must be rooted in evidence that is independent
from the evidence that contradicts or discredits the accused’s version of
events: O’Connor, at para. 21; Coutts, at para. 15.
The independent evidence relied
upon to establish fabrication often originates in sources external to the
allegedly fabricated statement. For example, soliciting false testimony from a
witness about an accused’s whereabouts at a material time.
But the necessary independent
evidence may also emerge from the circumstances in which a false statement is
made. Those circumstances, for example the detail provided and the timing of
the statement, may reveal an intent to mislead the police or to deflect
suspicion and thus may be evidence of a conscious mind that the accused
committed the offence charged: O’Connor, at paras. 26 and 31.
Evidence that
supports the case for the Crown, which if accepted would cause rejection of the
accused’s statement as unworthy of belief, is not evidence of concoction: Hall,
at para. 164; Coutts, at para. 16.
Contradictory exculpatory
statements of an accused both (or all) of which cannot be true may also
constitute independent evidence of fabrication:
R. v. Andrade (1985),
18 C.C.C. (3d) 41 (Ont. C.A.), at paras. 82-83; Hubin v. The King, 1927 CanLII 79 (SCC), [1927] S.C.R. 442, at pp. 445-446; R. v. Samuels (2005), 2005 CanLII 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.) at para. 37, leave to
appeal refused, [2005] S.C.C.A. No. 313.
See R. v.
Shafia, 2016 ONCA 812 (CanLII).
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