Canadian Criminal Evidence/Credibility/Post-Offence Conduct

General Principles Post offence conduct is a form of circumstantial evidence.R v Gagnon 2006 MBCA 125 (CanLII) It is admissible based on relevance. R. v. White, 2011 SCC 13 at 23 The utility depends on what inferences can be fairly drawn from the circumstances in its entirety. R. v. Teske [2005] O.J. No. 3759(C.A.) at para. 85 It is considered a “legal term of art” that refers “only [to] conduct which is probative of guilt.” R. v. Turcotte 2005 SCC 50 at para 37 This is more apparent from the previous term used of "consciousness of guilt".R v White 1998 125 C.C.C. (3d) 385 Post-offence conduct is frequently seen as:R v White flight from the scene of the crime or the jurisdiction in which the crime was committed; attempts to resist arrest; failure to appear at trial; and acts of concealment such as lying, assuming a false name, changing one's appearance, and hiding or disposing of evidence. This inference is case-specific based on factors such as:R. v. Figueroa (2008), 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 33 and 35 the nature of the conduct; the facts sought to be inferred from the conduct; the positions of the parties; and the totality of the evidence. Post-offence conduct cannot be used to infer a degree of culpability, but can be used to attack credibility.R. v. Jaw, 2009 SCC 42 at 39 An exculpatory statement that has been discredited can only be used to make to an adverse inference against the accused where there is independent evidence of fabrication.R v Hein 2008 BCCA 109 at para. 53 The key is to establish an intent to deceive to support an inference of consciousness of guilt.R v Hibbert, 2002 SCC 39 at 67 R v Tessier 1997 CanLII 3475 The proof of fabrication can be based on the circumstances of the statement.R v O'Connor 2002 CanLII 3540 at para 26-27 This includes compelling inconsistenciesR v Bennett, 2003 CanLII 21292 (ONCA) or contradictory statements suggesting concoction.R v Andrade, (1985) 6 OAC 345, 18 CCC (3d) 41 at 67 Such statements should be treated in the same manner as alibis.R v O'Connor 2002 CanLII 3540 (ONCA) at para. 18 Proof of the accused's flight from a scene permits an inference that an offence occurred. It does not permit the inference, without more, that it was a specific offence charged. 2 See Also Canadian Criminal Evidence/Circumstantial Evidence