Canadian Criminal Evidence/Credibility/Post-Offence Conduct

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General Principles[edit]

Post offence conduct is a form of circumstantial evidence.[1] It is admissible based on relevance.[2] The utility depends on what inferences can be fairly drawn from the circumstances in its entirety. [3]

It is considered a “legal term of art” that refers “only [to] conduct which is probative of guilt.” [4] This is more apparent from the previous term used of "consciousness of guilt".[5]

Post-offence conduct is frequently seen as:[6]

  1. flight from the scene of the crime or the jurisdiction in which the crime was committed;
  2. attempts to resist arrest;
  3. failure to appear at trial; and
  4. 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:[7]

  1. the nature of the conduct;
  2. the facts sought to be inferred from the conduct;
  3. the positions of the parties; and
  4. the totality of the evidence.

Post-offence conduct cannot be used to infer a degree of culpability, but can be used to attack credibility.[8]

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.[9] The key is to establish an intent to deceive to support an inference of consciousness of guilt.[10]

The proof of fabrication can be based on the circumstances of the statement.[11] This includes compelling inconsistencies[12] or contradictory statements suggesting concoction.[13]

Such statements should be treated in the same manner as alibis.[14]

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.

  1. R v Gagnon 2006 MBCA 125 (CanLII)
  2. R. v. White, 2011 SCC 13 at 23
  3. R. v. Teske [2005] O.J. No. 3759(C.A.) at para. 85
  4. R. v. Turcotte 2005 SCC 50 at para 37
  5. R v White 1998 125 C.C.C. (3d) 385
  6. R v White
  7. R. v. Figueroa (2008), 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 33 and 35 [1]
  8. R. v. Jaw, 2009 SCC 42 at 39
  9. R v Hein 2008 BCCA 109 at para. 53
  10. R v Hibbert, 2002 SCC 39 at 67
    R v Tessier 1997 CanLII 3475
  11. R v O'Connor 2002 CanLII 3540 at para 26-27
  12. R v Bennett, 2003 CanLII 21292 (ONCA)
  13. R v Andrade, (1985) 6 OAC 345, 18 CCC (3d) 41 at 67
  14. R v O'Connor 2002 CanLII 3540 (ONCA) at para. 18

See Also[edit]