R. v. White

R. v. White
Collection
Supreme Court Judgments
Date
1998-07-09
Report
[1998] 2 SCR 72
Case number
25775, 25854
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 25775, 25854
Decision Content
R. v. White, [1998] 2 S.C.R. 72
Richard Gerry White Appellant
v.
Her Majesty The Queen Respondent
and
Yves Rhéal Côté Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. White
File Nos.: 25775, 25854.
1998: March 26; 1998: July 9.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Criminal law -- Evidence -- Post-offence conduct -- Charge to jury -- Accused charged with first degree murder -- Accused fleeing jurisdiction, running from police and attempting to dispose of murder weapon after victim was killed -- Whether trial judge should have instructed jury that post-offence conduct had no probative value -- Whether trial judge should have instructed jury to apply reasonable doubt standard to evidence of accused’s post-offence conduct.
The accused, W and C, were charged with first degree murder. The victim’s body was discovered near Ottawa. He had been shot twice with a shotgun and four times with a pistol. He had last been seen alive the previous evening in the company of the two accused. W and C left the Ottawa area soon after the murder. Two days later they robbed a bank in the Toronto area and one week later robbed the same bank again. During these robberies C fired a shotgun and a pistol, and left behind shells and cartridge cases that matched those found at the murder scene. The accused admitted the facts concerning both robberies, but denied any involvement in the murder. At trial, the Crown introduced the following evidence indicating that the departure of the accused from Ottawa following the murder constituted flight from the area: the fact that the accused remained away for more than ten days, missed parole meetings and failed to pick up a social assistance cheque; the fact that, according to an acquaintance who testified as a Crown witness, C called to inquire about “heat” in Ottawa and to instruct his landlord to pack up his belongings; W’s comments to the acquaintance that he needed a car and money to go away; and the commission of the two bank robberies. The Crown also introduced evidence showing that upon returning to Ottawa the accused fled from the police, and that they had police scanners in their car. In addition it led evidence of concealment, including the acquaintance’s testimony that the accused planned to get rid of the pistol, and the fact that W attempted to dispose of the pistol as he ran from the police in Ottawa. Defence counsel objected to the submission of this evidence to the jury on the ground that these actions could be explained by the parole violations and the bank robberies and therefore were not probative of whether the accused had killed the victim. The trial judge allowed the evidence to go to the jury, and gave them an instruction on how it should be dealt with. The jury returned verdicts of first degree murder against both accused. The Court of Appeal upheld the convictions.
Held: The appeals should be dismissed.
In certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. However, it may be proper to instruct a jury that such evidence has no probative value when, as a result of an admission by the accused, the evidence cannot logically support an inference of guilt with respect to the offence being tried rather than some other offence. As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. A “no probative value” instruction will thus be called for only in limited circumstances. Such an instruction is most likely to be warranted where the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such circumstances, it can be said that the post-offence conduct of the accused is “equally explained by” or “equally consistent with” two or more offences. By contrast, a “no probative value” instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. In this case the accused denied any involvement in the murder, and it was therefore their identities as the killers, and not their degree of guilt, which formed the issue in dispute at trial. Since the evidence of their post-offence conduct was relevant to the question of whether they had committed the murder, the trial judge was not required to instruct the jury that it had no probative value.
In cases where a “no probative value” instruction is not required and the post-offence conduct of an accused is put before the jury, the trial judge should nevertheless provide an instruction regarding the proper use of that evidence. In particular, the trial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried. The trial judge was not, however, required to direct the jury to apply the reasonable doubt standard to the evidence of the post-offence conduct, and would have been in error had he done so. The criminal standard of proof applies only to the jury’s final determination of guilt or innocence and is not to be applied to individual items or categories of evidence. Post-offence conduct, like any evidence, takes on its full significance and probative value only in the context of the other evidence in the case. Here, the trial judge properly instructed the jury that the acts of flight and concealment of the accused constituted evidence “which may be considered and weighed by you, as triers of fact, together with all the evidence in deciding the guilt or innocence of the accused”. He reminded the jury that flight or concealment does not necessarily imply guilt, but can arise from any number of innocent motives. He further instructed the jury that there might be “very valid reasons” for the conduct of the accused other than their guilt for the murder, and reviewed the alternative explanations put forth by the defence. The jury charge relating to the evidence of post-offence conduct was therefore adequate as given.
Cases Cited
Applied: R. v. Morin, [1988] 2 S.C.R. 345; distinguished: R. v. MacKenzie, [1993] 1 S.C.R. 212; not followed: R. v. Court (1995), 99 C.C.C. (3d) 237; R. v. Poirier (1995), 56 B.C.A.C. 131; referred to: R. v. Arcangioli, [1994] 1 S.C.R. 129; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Peavoy (1997), 117 C.C.C. (3d) 226; Gudmondson v. The King (1933), 60 C.C.C. 332; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74; R. v. Jacquard, [1997] 1 S.C.R. 314; United States v. Myers, 550 F.2d 1036 (1977); United States v. Boyle, 675 F.2d 430 (1982); United States v. Kalish, 690 F.2d 1144 (1982); R. v. Wiltse (1994), 19 O.R. (3d) 379; R. v. Burdick (1975), 27 C.C.C. (2d) 497; R. v. Cole (1980), 53 C.C.C. (2d) 269; R. v. Parrington (1985), 20 C.C.C. (3d) 184; R. v. Smith (1993), 31 B.C.A.C. 189; R. v. Richens, [1993] 4 All E.R. 877; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193; R. v. Bouvier (1984), 11 C.C.C. (3d) 257, aff’d [1985] 2 S.C.R. 485; R. v. Minhas (1986), 29 C.C.C. (3d) 193; Stewart v. The Queen, [1977] 2 S.C.R. 748; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. W. (D.), [1991] 1 S.C.R. 742.
APPEALS from a judgment of the Ontario Court of Appeal (1996), 108 C.C.C. (3d) 1, 29 O.R. (3d) 577, 91 O.A.C. 321, 49 C.R. (4th) 97, [1996] O.J. No. 2405 (QL), dismissing the appeals of the accused from their convictions of first degree murder. Appeals dismissed.
David E. Harris, for the appellant White.
John H. Hale, for the appellant Côté.
Kenneth R. Campbell and Susan L. Reid, for the respondent.
//Major J.//
The judgment of the Court was delivered by
1 Major J. -- The appellants, Richard Gerry White and Yves Rhéal Côté, were convicted of first degree murder in connection with the execution-style killing of Wei Kueng Chiu. Their appeals were dismissed by the Ontario Court of Appeal. The main issue in these appeals is whether the trial judge properly instructed the jury regarding the inferences to be drawn from the conduct of the appellants after the murder. In particular, the appeals concern evidence that the appellants fled from the jurisdiction in which the murder was committed, ran from the police to avoid arrest, and attempted to dispose of one of the murder weapons.
2 Two questions are before this Court. The first is whether, pursuant to the principles set out in R. v. Arcangioli, [1994] 1 S.C.R. 129, the trial judge should have instructed the jury that the appellants’ post-offence conduct had “no probative value” with respect to Chiu’s murder. The second question is whether the jury should have been instructed to draw no inferences from that evidence unless they were satisfied beyond a reasonable doubt that the appellants’ conduct was motivated by consciousness of guilt for having murdered Chiu, and not by some other cause.
I. The Facts
3 On the morning of August 27, 1989, the body of Wei Kueng Chiu was discovered at an isolated location near Ottawa. He had been shot twice in the upper body with a 12-gauge shotgun, and four times in the head with a .22 calibre pistol. Chiu had last been seen alive at about 8:00 p.m. the previous evening in the company of the appellants. The appellants were seen together later that night, but without Chiu. The three men were known to be friends, having served time together at Joyceville Penitentiary. All three had been released on parole earlier in the year.
A. The Appellants’ Departure from Ottawa
4 As stated, the central issue in these appeals concerns the behaviour of the appellants after Chiu was killed. The appellants remained in Ottawa on August 27 but did not return home that night and were not seen again in the area for nearly two weeks. It is not clear precisely when they left Ottawa, but on the morning of August 29 they robbed a bank in Mississauga, Ontario, about 500 kilometres away. One week later, on September 5, they robbed the same bank. During these robberies Côté fired a 12-gauge shotgun and a .22 calibre pistol, and left behind shells and cartridge cases that matched those found at the scene of Chiu’s murder. The appellants admitted the facts concerning both robberies.
5 From August 29 until September 7, the appellants stayed at two motels in Burlington, Ontario. During that time Côté missed a meeting with his parole officer in Ottawa, and White failed to respond to a letter regarding a similar meeting that he had missed earlier in the month. As a result of these parole violations, arrest warrants were issued for both appellants. White also failed to pick up a $400 social assistance cheque in Ottawa which he knew was available since August 30. On August 31, Côté called his landlord in Ottawa and asked him to gather his “things” and put them aside. Côté said that someone would pick them up because he would not be returning. When the landlord asked why, Côté replied: “the less you know, the better.”
B. Evidence of Paul Corner
6 Paul Corner testified for the Crown as an accomplice witness. On the stand, he admitted that he had a criminal record, including numerous offences of dishonesty. Corner testified that he was acquainted with the appellants from Joyceville Penitentiary, and that he met with them on August 29 in Burlington and registered them at a motel under his name that night. According to Corner, the following events unfolded in the appellants’ motel room. White and Côté unpacked their bags and removed a 12-gauge shotgun and a .22 calibre pistol. Côté then stated that he had “better see what it is like down in Ottawa” and placed a telephone call. At the end of the ensuing conversation, which Corner could not follow because it was in French, Côté turned to White and said: “everything is cool, there is no heat”. White then turned to Corner and explained that he and Côté had “snuffed somebody” in Ottawa, and more specifically that they had shot somebody to death with a shotgun and a pistol. When Corner expressed concern about his car, which he had lent to White earlier in the month, White assured him that “the car is fine, we didn’t -- there is no heat on [the] car”. Corner further testified that Côté was anxious to “get rid of the .22” and that White agreed to do so as soon as they could get another one. According to Corner, White also said that he and Côté were “going away” and needed money. Corner testified that he got the impression from the appellants that they were planning to go “west”.
C. Flight from the Police in Ottawa
7 White and Côté returned to Ottawa on September 7, 1989. The following morning the Ottawa police were tipped off, caught up with the appellants, and signalled for them to stop their car. The appellants accelerated and a short chase ensued. The appellants drove down a side street, slowed down, leapt from their car while it was still moving, and began running away. Some officers gave chase on foot. When one of the officers fired a shot in the air, Côté stopped and was arrested at gunpoint. White continued to flee, and threw a .22 calibre pistol under a parked car as he ran. He was arrested a short time later.
8 In the appellants’ car, the police found a 12-gauge shotgun, ammunition for the shotgun and for a .22 calibre pistol, radio scanners, and lists of police frequencies. Forensic tests revealed that the shotgun was the same weapon that had been used in Chiu’s murder and during the bank robberies. The pistol discarded by White was recovered and was also determined to have been used in the murder and the robberies. The Crown introduced evidence establishing that both the shotgun and the pistol had been in the appellants’ possession before Chiu was killed.
II. Judicial History
A. Supreme Court of Ontario
9 At trial, the Crown introduced the appellants’ departure from Ottawa, their comments to Corner, their flight from the police and White’s attempt to dispose of the pistol as evidence that the appellants were conscious of their own guilt for Chiu’s murder and were attempting to escape prosecution for that crime. Defence counsel objected to the submission of this evidence to the jury on the ground that the appellants’ actions could be explained by the parole violations and the bank robberies and therefore were not probative of whether the appellants had killed Chiu.
10 The trial judge allowed the evidence to go to the jury, and gave the following instruction:
I want to deal briefly with the evidence of flight and concealment. And I want to, before I deal with that, I will tell you what the rule is as to [how] you should look at this evidence. What the law says is that flight or concealment of the accused after a crime is committed does not mean that the accused is guilty of the crime. It is common knowledge that people who are entirely innocent sometimes fly from the scene of a crime to avoid apprehension as guilty parties or because they don’t want to get involved as witnesses. But flight is a circumstance which may be considered and weighed by you, as triers of fact, together with all the evidence in deciding the guilt or innocence of the accused. In the circumstance of this case where the evidence of flight is uncontradicted, you may infer that evidence of flight or concealment shows a consciousness of guilt. You have first to decide whether the evidence is evidence of flight or concealment, before you may draw that inference of consciousness of guilt.
. . .
Now [defence counsel] in their closing submissions told you that there were very valid reasons why the accused were fleeing. They were both parole violators and I suppose that is why they went to Hamilton and to Burlington. After the robberies in Burlington they came back to Ottawa. They wanted to get away from the scene of the robberies. And they both pointed out that in any case they started out in Ottawa and they returned to Ottawa so there is no flight. These are areas of the evidence on the issue of flight that you might want to consider and decide whether to draw an inference of consciousness of guilt or guilt itself.
The trial judge did not discuss the standard of proof that the jury should apply when considering the evidence of flight and concealment. The jury returned verdicts of first degree murder against both appellants.
B. Ontario Court of Appeal (1996), 108 C.C.C. (3d) 1
11 On appeal of their convictions, the appellants raised numerous arguments attacking the trial judge’s jury instructions. The appeals were dismissed in a per curiam decision by a five-judge panel of the Ontario Court of Appeal. Because the reasons of the Court of Appeal dealt with many of the issues raised in these appeals, they bear examination here.
12 With respect to consciousness of guilt, the appellants’ arguments before the Court of Appeal were essentially the same as those made to this Court. Relying on Arcangioli, the appellants contended that their conduct after the murder was fully explained by the parole violations and the bank robberies, and therefore had no probative value with respect to whether they had also killed Chiu. They argued that the trial judge erred by failing to instruct the jury to disregard that evidence. The Court of Appeal disagreed. It stated at pp. 16-17:
This case is different from Arcangioli. In Arcangioli the accused admitted an assault and the issue at trial was his level of culpability. On that issue the evidence of consciousness of guilt -- the accused’s flight from the scene -- had no probative value. The evidence of flight was not reasonably capable of supporting the inference that the accused had committed aggravated assault as opposed to common assault. In this case the consciousness of guilt evidence was not led to help the jury determine the appellants’ level of culpability -- first or second degree murder -- for an admitted killing. The evidence was led to help the jury determine whether the appellants were guilty of a killing that they denied having committed. The evidence could have probative value on that issue because it could reasonably support the inference that the appellants’ conduct related to their culpability for killing Chiu rather than to their culpability for the bank robberies or parole violations.
After reviewing the conduct at issue in this case, the court concluded that the evidence was not equally consistent with the alternative explanation advanced by the appellants. The court noted that it was the role of the jury, not the judge, to weigh the evidence and to determine whether in fact it pertained to the murder rather than to some other criminal activity. Accordingly, the court held that the trial judge was not required to instruct the jury that the evidence had no probative value.
13 The court next considered the argument that the trial judge had erred by failing to instruct the jury to apply a separate standard of proof to the evidence relating to consciousness of guilt. Relying on R. v. Court (1995), 99 C.C.C. (3d) 237 (Ont. C.A.), the appellants argued that the jury should have been directed to examine the evidence of post-offence conduct separately from the rest of the evidence, and to determine beyond a reasonable doubt whether that conduct reflected a consciousness of guilt on the part of the appellants for the murder of Chiu; if such a link could not be established, the jury should have been told that they could draw no inference of guilt from the appellants’ conduct.
14 The court rejected that approach. It emphasized that the jury’s determination of guilt or innocence must be based on all of the evidence, and that the criminal standard cannot be applied to selected items or categories of evidence separately without violating the principles laid down by this Court in R. v. Morin, [1988] 2 S.C.R. 345. As the court explained at p. 26:
. . . evidence tending to show consciousness of guilt can properly be treated as supportive of other evidence of guilt and should not be excluded from consideration because, on its own, it may not satisfy the standard of proof beyond a reasonable doubt.
. . . as with other evidence, the instructions should not encourage isolation, lest evidence which fails to meet the reasonable doubt standard, but is otherwise probative, be set aside in a piecemeal analysis.
The Ontario Court of Appeal acknowledged that it was overruling its own decision in Court and was disagreeing with the judgment of the British Columbia Court of Appeal in R. v. Poirier (1995), 56 B.C.A.C. 131, but it held that those decisions could not be reconciled with Morin. The court stressed the similarities between evidence relating to consciousness of guilt and other forms of circumstantial evidence, and noted that segregating one type of evidence for special treatment would make jury instructions more complex and confusing. It concluded that the trial judge did not err by failing to apply the principles of Court in the jury charge.
15 The court then disposed of the remaining grounds in the appeals. First, it rejected the appellants’ claim that the jury charge was insufficient with regard to the law of aiding and abetting, and noted at pp. 30-31 that “[o]nce the jury were satisfied that both accused persons were at the scene of the crime, there was no room to argue for a lesser or greater involvement between them.” The court also rejected the claim that the jury charge was insufficient with regard to the lack of evidence of motive. The court found that the charge on that matter was in fact more favourable to the appellants than the evidence merited.
16 The court next addressed the argument that the trial judge had failed to provide an adequate warning, pursuant to Vetrovec v. The Queen, [1982] 1 S.C.R. 811, about the reliability of Paul Corner’s testimony. In particular, the appellants asserted that the jury should have been told to rely on Corner’s testimony only to the extent it was supported by independent evidence. The court rejected that argument, and held that the charge as given made it sufficiently clear to the jury that they should regard Corner’s evidence with great caution. The court also dismissed the appellants’ argument that the trial judge had erred by equating “planning and deliberation” with “intention” and by referring to irrelevant evidence while instructing the jury on those concepts. The court agreed that the charge in this area lacked focus, but concluded that the instructions as a whole clarified the distinction between deliberation and intention and did not give rise to any reversible error.
17 The appellants’ remaining arguments concerned the jury charge on reasonable doubt, the use of evidence of prior convictions, and the overall reasonableness of the jury’s verdict. The Court of Appeal dismissed those arguments in summary fashion.
III. Issues
18 Our consideration of these appeals is limited to the two issues involving post-offence conduct and consciousness of guilt:
(1) Did the Court of Appeal err in finding that the trial judge was not required to give a “no probative value” instruction pursuant to Arcangioli?
(2) Did the Court of Appeal err in finding that a separate standard of proof does not apply to the jury’s consideration of evidence relating to consciousness of guilt?
IV. Analysis
A. Post-Offence Conduct and Consciousness of Guilt
19 Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238:
Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
20 Evidence of this kind is often called “consciousness of guilt evidence”, since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. “Consciousness of guilt” is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words “consciousness of guilt” suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury. As has been suggested by the Ontario Court of Appeal, to the extent a general description is necessary, the use of more neutral language such as “evidence of post-offence conduct” or “evidence of after-the-fact conduct” is preferable: Peavoy, supra, at p. 238. Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand -- the act of flight, the false statement, as the case may be -- and on the relevance of those items to the ultimate issue of guilt or innocence.
21 Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.
22 It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.
23 Two legal doctrines have arisen in response to these concerns. As a preliminary matter, this Court held in Arcangioli that a jury should not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence and the evidence cannot logically support an inference of guilt with respect to one crime rather than the other. That rule is essentially a matter of relevance and will usually apply in narrow circumstances. More generally, this Court has also held that when evidence of post-offence conduct is put to the jury, the jury should be “properly instructed” to ensure that the evidence is not misused: Arcangioli, at p. 143; Gudmondson v. The King (1933), 60 C.C.C. 332 (S.C.C.), at pp. 332-33. The content of such an instruction, particularly the appropriate standard of proof, has been the subject of ongoing controversy in the Courts of Appeal and is addressed below.
B. When Does Evidence of Post-Offence Conduct Have No Probative Value?
24 In Arcangioli, this Court considered the risks associated with the use of evidence going to consciousness of guilt. The facts were straightforward: the accused was charged with aggravated assault in connection with a stabbing that occurred during a fight outside a bar. The fight involved several people, all of whom fled the scene when it became apparent that the victim had been stabbed. At trial, the accused admitted punching the victim, but denied any involvement in the stabbing; he testified that he fled after he saw another person stab the victim in the back. The trial judge instructed the jury that the accused’s flight was a factor they could consider in reaching their verdict but that the evidence was not conclusive, as innocent people sometimes flee. On appeal to this Court, the jury instruction was held to be insufficient. The Court noted at p. 147:
By his own admission, the appellant was not entirely innocent; he admitted that he had punched [the victim]. The trial judge should have instructed the jury that the appellant’s flight was equally consistent with common assault and with aggravated assault, and therefore was incapable of supporting an inference of consciousness of guilt with respect to the latter. Because she did not charge the jury in those terms, there is a danger that the jury may have wrongly inferred from the evidence that the appellant fled because of his guilt in stabbing [the victim].
As a general proposition, it was held at p. 145 that:
[W]here an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.
25 In this case, which predates Arcangioli, the trial judge did not give a “no probative value” instruction with regard to the appellants’ post-offence conduct. The appellants contend that this was error. They argue that their acts of flight and concealment could not be probative of consciousness of guilt with respect to Chiu’s murder, because those acts were “equally explained” by reference to the parole violations and bank robberies which they admitted committing. The issue before this Court is to what extent Arcangioli governs this case.
Application of Arcangioli
26 Arcangioli stands for the proposition that a piece of evidence should not be put to the jury unless it is relevant to the determination of a live issue in the case. The conduct of the accused in Arcangioli -- running from the scene of the crime -- was withdrawn from the jury because it could not reasonably assist them in deciding the specific issue before them. As this Court noted at p. 146:
[T]he issue was whether the appellant’s flight indicated a consciousness of guilt arising from the fact that he had stabbed [the victim] or rather from the fact that he had punched [him]. And on that question, the evidence could have no probative value. [Emphasis added.]
Whether a jury should be permitted to consider evidence of post-offence conduct will depend on the facts of each case. The question that should be asked at the outset is: What does the Crown seek to prove by means of the evidence? An admission by the accused may have the effect of narrowing the issue in dispute considerably, as was the case in Arcangioli. If, as a result of such an admission, the accused’s conduct can no longer be attributed to the offence being tried rather than some other offence, then the jury should be so instructed. The evidence of post-offence conduct may still be used by the jury for other purposes where appropriate, for example to connect the accused to the scene of the crime or to a piece of physical evidence, or to undermine the credibility of the accused generally.
27 As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances.
28 Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation. In R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74 (Ont. C.A.), this Court adopted the dissenting reasons of Dubin C.J.O., who held at p. 81 of the judgment below:
If, at the trial, the appellant had persisted in his earlier denial of non-involvement in the killing of the deceased, the jury would have been entitled -- from the evidence of the appellant’s flight from the scene, the appellant’s false statements, and the destruction of evidence -- to draw an inference of consciousness of guilt from which a further inference of culpability in the crime could also have been drawn. Once the appellant had admitted at trial that he had caused the death of the deceased, however, such evidence had very limited application. It had no application in determining whether the offence committed by the appellant was either murder or manslaughter.
See also R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 342-44. Under such circumstances, it can be said that the post-offence conduct of the accused is “equally explained by” or “equally consistent with” two or more offences.
29 By contrast, a “no probative value” instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. In such cases it is the identity of the accused as the perpetrator, rather than the extent of his or her culpability, that is in issue, and it will almost invariably fall to the jury to decide whether the evidence of post-offence conduct can be attributed to one culpable act rather than another.
30 In United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), it was held that the flight of an accused from law enforcement officers could not reasonably support an inference of consciousness of guilt with respect to a bank robbery, because the accused had confessed to committing a more recent robbery in another state. The reasoning in Myers provided helpful guidance to this Court in Arcangioli, but its result was not determinative. Subsequent American decisions have confined Myers to its facts, and have confirmed that so long as evidence of after-the-fact conduct is relevant to an issue in dispute, the attribution of that conduct to one offence rather than another is normally a question of fact for the jury. See United States v. Boyle, 675 F.2d 430 (1st Cir. 1982), at p. 432; United States v. Kalish, 690 F.2d 1144 (5th Cir. 1982), at p. 1156.
31 This principle is illustrated by the decision of Doherty J.A. for the Ontario Court of Appeal in R. v. Wiltse (1994), 19 O.R. (3d) 379. In that case, the two accused, Wiltse and Yarema, were charged with first degree murder. Each had provided the police with a false alibi and the Crown sought to use this lie as evidence going to consciousness of guilt. At trial, Wiltse admitted culpability for manslaughter but denied committing murder. Yarema, however, denied any responsibility for the killing. The Ontario Court of Appeal, applying Arcangioli, held that Wiltse’s false alibi had no probative value with respect to the question of whether he was guilty of murder rather than manslaughter. With regard to Yarema, however, the situation was different. The Court noted that Yarema’s false alibi was properly submitted to the jury to determine whether it reflected Yarema’s participation in the homicide, which he denied, or in other illegal conduct, which he admitted.
32 This distinction provides some guidance as to when a “no probative value” instruction will be warranted, but it is not a formula. The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy, supra, at p. 241; Jacquard, supra, at p. 348.
33 It bears emphasizing that in these sorts of cases, while the evidence cannot be said to be irrelevant to the issue in dispute, it might still be withdrawn from the jury by the trial judge on the basis that it is more prejudicial than probative. The same would be true in cases where two separate offences have been committed and the evidence of post-offence conduct provides scant basis for distinguishing between them. Such a decision would fall within the ordinary discretion of the trial judge, however, and would not be mandated by the result in Arcangioli.
The Present Appeals
34 In the present appeals, White and Côté denied any involvement in the murder for which they were charged. It was therefore their identities as the killers, and not their degree of guilt, which formed the issue in dispute at trial. With regard to that issue, the Crown introduced evidence of the appellants’ departure from Ottawa shortly after the murder, along with other evidence indicating that that departure constituted flight from the area: i.e., the fact that the appellants remained away for more than ten days, missed parole meetings and failed to pick up a social assistance cheque; Côté’s calls to inquire about “heat” in Ottawa and to instruct his landlord to pack up his belongings; White’s comments to Corner that he needed a car and money to go away; and the appellants’ commission of the two bank robberies. The Crown also introduced the appellants’ flight from the police in Ottawa, and the fact that they had p