R. v. White

R. v. White
Collection
Supreme Court Judgments
Date
2011-03-11
Neutral citation
2011 SCC 13
Report
[2011] 1 SCR 433
Case number
33464
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 33464
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433
Date: 20110311
Docket: 33464
Between:
Dennis Robert White
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 103)
Concurring Reasons:
(paras. 104 to 131)
Dissenting Reasons:
(paras. 132 to 198)
Rothstein J. (LeBel, Abella and Cromwell JJ. concurring)
Charron J. (Deschamps J. concurring)
Binnie J. (McLachlin C.J. and Fish J. concurring)
R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433
Dennis Robert White Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. White
2011 SCC 13
File No.: 33464.
2010: May 14; 2011: March 11.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Criminal law — Trial — Charge to jury — Post-offence conduct — Murder — Accused fleeing crime scene after shooting victim — Accused conceding at trial to having shot victim unlawfully but claiming lack of intent to kill — Crown stating in closing argument that accused fled with no hesitation, shock or uncertainty — Trial judge instructing jury to be “careful” in considering post-offence conduct — Whether lack of instruction stating that post-offence conduct had no probative value constituting error of law — If so, whether curative proviso applicable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
The accused and the victim were engaged in a physical altercation when a loaded handgun in the accused’s possession was fired into the victim’s chest, killing him instantly. Immediately and without hesitation, the accused fled the scene. He was later apprehended by police and charged with second degree murder. Throughout the Crown’s case, the identity of the shooter was a live issue, but by trial’s end, the accused effectively admitted to manslaughter, and thus the only live issue before the jury was whether he had the requisite intent for murder. In response to the accused’s theory according to which he shot the victim accidently as the two grappled with one another, the Crown pointed out in its closing argument that the accused had fled with “no hesitation here, no shock, no uncertainty on his part” and that one would expect hesitation if the shot had been anything other than intended. In his charge to the jury, the trial judge referred to the accused’s post-offence conduct on two occasions, namely in the context of his instructions on the issue of intent where he stated: “You may consider [the accused’s] post-event conduct in fleeing the scene, but you should also be careful with it” and “it may not be of much assistance in assessing his precise state of mind at the time the gun was fired”, and in his summary of the Crown’s theory of the case. The accused was convicted as charged. On appeal, the accused argued that the trial judge should have specifically instructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the issue of intent, because that evidence was consistent with both manslaughter and second degree murder. The majority of the Court of Appeal upheld the conviction, concluding that although the jury charge was deficient, the error was minor and could have no impact on the final verdict. The dissenting judge concluded that the trial judge had erred in failing to give a “no probative value” instruction. In his view, the error was serious such that it could not be saved by using the curative proviso found in s. 686(1) (b)(iii) of the Criminal Code .
Held (McLachlin C.J. and Binnie and Fish JJ. dissenting): The appeal should be dismissed.
Per LeBel, Abella, Rothstein and Cromwell JJ.: This case is distinguishable from R. v. Arcangioli, [1994] 1 S.C.R. 129, on the facts, and the jury charge was adequate. Even assuming that the trial judge erred in his instructions to the jury, the error was harmless and should be saved by the curative proviso in s. 686(1) (b)(iii) of the Criminal Code .
The principle that post-offence conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence should be subject to a “no probative value” limiting instruction is simply a matter of relevance. As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis. Given that post-offence conduct is not fundamentally different from other kinds of circumstantial evidence, its admissibility and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, post-offence conduct evidence must be relevant to a live issue and must not be subject to a specific exclusionary rule; it may also be excluded pursuant to the exercise of a recognized judicial discretion. It is also possible, and often appropriate, for a trial judge to warn the jury of the risks associated with certain types of evidence. The purpose of such a caution is to alert the jury to the danger, which has been recognized through judicial experience, but then allow the properly informed jurors to evaluate the evidence with care. Moreover, there is an important distinction to be made between a limiting instruction and a warning or caution. A limiting instruction tells the jury they must not consider the evidence for one or several purposes, and a warning or caution leaves the evidence for the jury to consider, but warns them to be careful with it. In the present case, the judge did warn the jury to be careful with the evidence relating to the accused’s flight and that there may be one or more explanations for his conduct.
Arcangioli and its successor cases, such as R. v. White, [1998] 2 S.C.R. 72, do not support the very broad proposition that post-offence conduct is generally inadmissible in determining whether an accused is guilty of manslaughter or murder. Indeed, they stand for the proposition that a “no probative value” instruction will be required when an accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences. Those cases should be understood as a restatement, tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue. Whether or not a given instance of post-offence conduct has probative value with respect to an accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. Furthermore, when the question is whether certain evidence should be removed from the jury because it is irrelevant, it is enough to evaluate whether that evidence is relevant to the material fact at issue as a matter of logic and human experience. The risk that a jury will misuse or be misled by an item of evidence should not inform the relevance determination. Instead, this risk is appropriately addressed through the trial judge’s discretion to exclude evidence whose prejudicial effect outweighs its probative value or through a caution in the jury charge.
In this case, the trial judge’s instructions to the jury on the question of post-offence conduct were adequate and did not constitute an error of law. Indeed, the conduct alluded to by the Crown was not the flight itself, but rather the accused’s failure to hesitate after his gun was fired into the victim’s chest before he fled the scene. This is different from the question at issue in Arcangioli, which concerned the simple act of fleeing from the scene. The situation in the present case is no different from that in R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, in that a jury could legitimately infer that the accused’s lack of hesitation after the gun was fired belied his claim that the shooting was accidental. Evidence of such a failure is thus relevant to the question of whether he had the requisite intent for second degree murder. Moreover, the evidence was not tainted by the hallmark flaws associated with demeanour evidence so as to be irrelevant, nor was it an invitation to infer a murderous intent from the way the accused looked just before he fled. Lack of hesitation prior to flight is an objective fact, from which the finder of fact, and not a witness is asked to draw an inference of no shock or surprise. While it is true that using evidence of lack of hesitation prior to flight presupposes a normal range of reactions, and while it may be that not everyone will respond in the same way, divergence from that norm, though not determinative, is more consistent with an intentional shooting than with an accident. It would therefore have been wrong for the trial judge to instruct the jury that this evidence had no probative value in determining intent. As well, while it is theoretically possible to read the trial judge’s statement as an invitation to consider the accused’s act of flight as evidence of consciousness of guilt, this would not be a reasonable interpretation given the context in which the statement was made.
It was, however, appropriate for the trial judge to warn the jury to be careful with the post-event conduct evidence and tell them that it might not be of much assistance. Indeed, there could have been other explanations for the accused’s failure to hesitate. While the notion that a person who accidentally shoots someone to death will normally have the immediate reaction of hesitating or showing some other sign of surprise is well founded, there may be exceptional individuals who do not respond in the normal way. The caution was adequate to alert the jury to the risk associated with that evidence and to allow them to properly weigh it.
Nevertheless, if there was an error in the trial judge’s instructions, it should be saved by the curative proviso in s. 686(1) (b)(iii). It would have been ideal for the trial judge, when instructing the jury on the matter of intent, to refer expressly and exclusively to the accused’s lack of hesitation, as opposed to his “conduct in fleeing the scene”. However, even assuming that the statement was persistently or intractably ambiguous and therefore constitutes an error, such an error is a minor one. There is no requirement for perfectly instructed juries, and given the nature of the purported error, it was unlikely to have had any effect on the jury’s deliberations.
Per Deschamps and Charron JJ.: There is agreement with Binnie J.’s analysis on the law concerning the use that may be made of evidence of post-offence conduct. As he stresses, it is definitely wrong to suggest that evidence of anything said or done by an accused after the commission of an offence gives rise to special rules of admissibility, or that it is subject to special warnings as to what use may be made of it by the trier of fact. There is also agreement with Binnie J. that judicial experience has taught us that in some cases jurors have found certain types of evidence more persuasive than warranted, thus making it necessary in appropriate cases to caution the jury accordingly or remove the evidence from their consideration altogether. Furthermore, it is agreed that inferences drawn by a witness, based on his or her observation of the accused’s demeanour, may well call for a special caution or be subject to an exclusion order.
However, there is disagreement with Binnie J. on the significance he attaches to Crown counsel’s reference in his closing address to the fact that the accused immediately fled the scene “with no hesitation here, no shock, no uncertainty”. The Crown did not invite the jury to draw an impermissible inference of guilt. Taken in context, Crown counsel’s comment could only have been understood by the jury as a rhetorical argument that no evidence supported the defence theory of accidental discharge of the firearm. The failure of defence counsel to raise any issue at trial regarding Crown counsel’s closing address or the trial judge’s instructions on the evidence of flight further supports this interpretation.
There is also no support in the record for the accused’s contention, accepted by Binnie J., that this case is a re-run of Arcangioli. In that case, the accused admitted to participating in the culpable event and the only issue at trial was his level of culpability. Conversely, in the present case, the identity of the shooter was a very live issue and the evidence of flight was highly relevant to the issue of identification. Moreover, it formed an inextricable part of the narrative as every witness to the event described the shooter, gun in hand, fleeing the scene. The evidence was therefore admissible at trial and properly left for the jury’s assessment. The trial judge’s instructions regarding this evidence contained no error. The evidence of flight was reviewed for the jury in this context and its significance would have been properly understood. In addition, on the question of intention, the trial judge took care to instruct the jury that they should “be careful with” the evidence in question, as it might not tell them “much more than that for any number of reasons he would be in some kind of trouble if he stayed at the scene and it may not be of much assistance in assessing his precise state of mind at the time the gun was fired”. In the context of this trial, no more was required. Accordingly, there is agreement with Rothstein J. that the jury charge contained no error, and there is no reason to interfere with the jury’s verdict.
Per McLachlin C.J. and Binnie and Fish JJ. (dissenting): The rules governing jury instructions where evidence relied on by the prosecution is not probative, or if probative is outweighed by unfair prejudice, are outlined in recent decisions in this Court in cases such as Arcangioli and White. The present case is not distinguishable in principle from Arcangioli. Indeed, as in Arcangioli, the conduct of the accused in the immediate aftermath of the offence was a significant element in the Crown’s argument to the jury, and in the trial judge’s final instructions. As well, there was the danger in this case that the jury might fail to take account of alternative explanations for the accused’s behaviour, and that they might mistakenly leap from such demeanour evidence to a conclusion of guilt. Had the issue of identity been put to the jury, undoubtedly evidence of flight would have been highly relevant. It might have been used by the jury, along with other evidence to find the accused to be the shooter. In the end, however, identity was admitted. Accordingly, the accused’s post-offence conduct was not simply put forward as part of the narrative; it was put forward as proof of guilt of second degree murder. On the basis of Arcangioli, that evidence was inadmissible to prove the specific intent necessary to support a conviction for murder.
Evidence of post-offence conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limited admissibility; the trier of fact may use it for one or more purposes but not for another. It follows that its introduction imposes on the trial judge in a jury trial the obligation to explain both the permitted and prohibited use of the evidence. The need will depend on the facts. One of the problems with evidence of post-offence conduct is that often the inferences sought are too equivocal for the evidence to be of any value. The question, as always, is the strength of the inferential link between the evidence in question and the fact sought to be established. If the evidence introduced in relation to a contentious issue has no probative value — or value that depends entirely on speculative or unreasonable inferences — it is irrelevant and should not be cluttering up the jury’s deliberations. In other situations, the inferences urged by the prosecution from post-offence conduct are impermissible for legal reasons rather than illogicality, and the evidence may be effectively withdrawn from the jury with a “no probative value” instruction. Whether or not a special caution is required with respect to post-offence conduct will depend not on whether that evidence alone can support an inference of guilt but on the court’s appreciation of the risk of impermissible inferences in relation to the issues on which the prosecution in its jury address places reliance.
There is no doubt that post-offence conduct is a type of circumstantial evidence and that when it comes to the need for a limiting instruction, much will depend on the facts. However, it is not enough simply to evaluate whether evidence as to, in this case, the accused’s “no hesitation here, no shock, no uncertainty on his part” might be portrayed as relevant to the issue of murderous intent merely as a matter of logic and human experience. Rather, relevance depends on the evidence having probative value in relation to a live issue. If the post-offence evidence of demeanour is not probative it is not relevant. As to probity, it is necessary to evaluate demeanour evidence having regard to the practical lessons that have accumulated in the courts over many years with respect to the potentially misleading nature of certain types of post-offence demeanour. While the bare fact of flight from the scene may be objective the same cannot be said of what a bystander interprets as a momentary lack of hesitation or absence of a demonstration of “shock” or “uncertainty”. This type of evidence depends on the unspoken assumptions that hesitation is normal whereas an immediate reaction is abnormal, and that the conduct of the accused fell below some assumed but unarticulated standard of procrastination. Moreover, this assumed departure from the assumed norm is said to give rise — potentially — to further inference of murderous intent. The double inference is problematic and relies on the type of subjective after-the-fact evaluation which experience has shown to be unreliable.
In this case, the Crown specifically urged the jury to infer murderous intent from “no hesitation here, no shock, no uncertainty on his part, just immediate flight”. The Crown emphasis was not on the act of flight (which was an objective fact) but on the alleged demeanour of the accused which was a matter of interpretation and opinion by a stranger necessarily calibrated according to the stranger’s own subjective expectation and cultural frame of reference about what would be expected. It seems equally plausible to conclude that a person in possession of an illegal handgun that has just shot a stranger — accidentally or otherwise — would run away as fast and far as he could without any hesitation at all. The use of such demeanour evidence in this case ought not to have been permitted to go to the jury on the critical, and virtually the only, issue in the case — murderous intent or accident. A jury should not be invited to draw unequivocal inferences from equivocal conduct based on attributed motives and subjective interpretations or misinterpretations of physical reactions. Moreover, because the accused’s lack of hesitation and instantaneous flight are equally explainable by the consciousness of more than one offence, the conduct has no probative value in relation to intent. The Crown asked the jury to draw speculative and unreasonable inferences on the issue of specific intent and the jury ought to have been instructed that the evidence of flight and the pre-flight demeanour was of no probative value on the issue of murderous intent. In addition, failure of the accused’s trial counsel to object to this aspect of the charge should not deny him relief.
Finally, the prosecution’s case against the accused for second degree murder was not overwhelming. The jury had little to work with in finding a way to choose between the hand to hand combat scenario suggesting manslaughter and the downwards shooting of an individual already on the ground which might suggest second degree murder. In these elusive circumstances, post-offence conduct of reaction time and demeanour took on considerable importance, which is why, no doubt, the Crown laid considerable emphasis on it in its closing argument. The error was therefore not harmless, and the curative proviso in s. 686(1) (b)(iii) should have no application.
Cases Cited
By Rothstein J.
Distinguished: R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. White, [1998] 2 S.C.R. 72; discussed: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; referred to: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Peavoy (1997), 34 O.R. (3d) 620; Gudmondson v. The King (1933), 60 C.C.C. 332; R. v. J.‑L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. B. (L.) (1997), 35 O.R. (3d) 35; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Nelles (1982), 16 C.C.C. (3d) 97; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Curran (2004), 188 O.A.C. 1; R. v. Levert (2001), 150 O.A.C. 208; R. v. Trotta (2004), 191 O.A.C. 322, rev’d 2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Jacquard, [1997] 1 S.C.R. 314.
By Charron J.
Referred to: R. v. Nelles (1982), 16 C.C.C. (3d) 97; R. v. Arcangioli, [1994] 1 S.C.R. 129.
By Binnie J. (dissenting)
R. v. Nelles (1982), 16 C.C.C. (3d) 97; R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. White, [1998] 2 S.C.R. 72; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Campbell (1998), 122 C.C.C. (3d) 44; Gudmondson v. The King (1933), 60 C.C.C. 332; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519; R. v. Peavoy (1997), 34 O.R. (3d) 620; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. MacKinnon (1999), 43 O.R. (3d) 378; R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Figueroa, 2008 ONCA 106, 58 C.R. (6th) 305; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. B. (S.C.) (1997), 36 O.R. (3d) 516; R. v. Bisson (1997), 114 C.C.C. (3d) 154; R. v. Bennett (2003), 67 O.R. (3d) 257; R. v. Baltrusaitis (2002), 58 O.R. (3d) 161; R. v. Powell (2006), 215 C.C.C. (3d) 274; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134; R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
Authors Cited
Canadian Oxford Dictionary, 2nd ed. Don Mills, Ont.: Oxford University Press, 2004, “demeanour”.
Ontario. Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report). Toronto: Ministry of the Attorney General, 1998.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008.
Palmer, Andrew. “Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other ‘Guilty Behaviour’ in the Investigation and Prosecution of Crime” (1997), 21 Melbourne U. L. Rev. 95.
Rondinelli, Vincenzo. “The Probative Force: Getting Inside the Guilty Mind and Keeping Out Equivocal Conduct” (2005), 26:3 Criminal Lawyers’ Association Newsletter 38.
Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. by Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst. Markham, Ont.: LexisNexis, 2009.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Ryan and Chiasson JJ.A.), 2009 BCCA 513, 278 B.C.A.C. 177, 248 C.C.C. (3d) 499, 71 C.R. (6th) 266, 471 W.A.C. 177, [2009] B.C.J. No. 2276 (QL), 2009 CarswellBC 3083, upholding the accused’s conviction for second degree murder. Appeal dismissed, McLachlin C.J. and Binnie and Fish JJ. dissenting.
Kathleen M. Bradley and Nikos Harris, for the appellant.
Wendy L. Rubin, Q.C., for the respondent.
The judgment of LeBel, Abella, Rothstein and Cromwell JJ. was delivered by
Rothstein J. —
I. Introduction [1] In the early hours of December 3, 2005, Lee Matasi was killed by a gunshot to the heart. According to multiple eyewitnesses, he was shot by the appellant, Dennis Robert White. The two had been engaged in a physical altercation that began after Mr. Matasi made a disparaging remark to Mr. White, who was in possession of a loaded handgun. In the course of their struggle, the gun was fired into Mr. Matasi’s chest, killing him instantly. Mr. White immediately fled the scene, but was later apprehended by the police.
[2] Mr. White was charged with second degree murder. Throughout the Crown’s case, the identity of the shooter was a live issue. However, by trial’s end, counsel for the defence had effectively (though not formally) conceded that Mr. White had shot Mr. Matasi unlawfully and was therefore guilty of manslaughter. Thus, the only live issue before the jury was whether Mr. White had the requisite intent for second degree murder. The jury found that he did and convicted him on that charge.
[3] Mr. White appealed his conviction to the B.C. Court of Appeal, alleging that the trial judge erred in his instructions to the jury. A majority of the Court of Appeal (Finch C.J.B.C. dissenting) dismissed the appeal, and Mr. White now appeals that decision before this Court.
[4] Mr. White’s complaint centres on a piece of circumstantial evidence used by the Crown in its prosecution. At trial, counsel for the defence had developed a theory of the case according to which Mr. White had shot the victim accidentally as the two angrily grappled with one another. As a small part of its response to this theory, the Crown pointed out in its closing argument:
Note as well that the accused ran immediately after the shooting. There is no hesitation here, no shock, no uncertainty on his part, just immediate flight. One would expect hesitancy if the shot was anything other than the intended action of Dennis White. [A.R., at p. 563]
[5] Counsel for the defence did not object to — or attempt to rebut — this line of argument, nor did he object to the way in which the trial judge presented the issue to the jury. Nevertheless, Mr. White appealed his conviction on the grounds that the trial judge erred in his instruction to the jury in relation to the relevance of the Crown’s submission on this point.
[6] Relying on this Court’s rulings in R. v. Arcangioli, [1994] 1 S.C.R. 129, and R. v. White, [1998] 2 S.C.R. 72 (“White (1998)”), Mr. White argued on appeal that the trial judge should have specifically instructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the question before the jury. In his view, the evidence relied upon by the Crown was consistent with both manslaughter and second degree murder, and was therefore irrelevant to the only live issue in the case. Given the prejudicial nature of such evidence, the trial judge’s failure to provide a “no probative value” instruction was an error of law that irredeemably tainted the jury’s verdict and warranted the ordering of a new trial.
[7] A majority of the Court of Appeal declined to order a new trial. It concluded that, although the jury charge was deficient, the error was a minor one and could have no impact on the final verdict.
[8] For the reasons set out below, I would dismiss the appeal. This case is distinguishable from Arcangioli on the facts, and in my view the jury charge was adequate. In any case, even assuming that the trial judge erred in his instructions to the jury, I believe the error to be harmless and would uphold the verdict under s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 .
II. The Court of Appeal, 2009 BCCA 513, 278 B.C.A.C. 177 A. Ryan and Chiasson JJ.A. [9] Ryan J.A., writing for the majority, dismissed the appeal. She found that the trial judge had erred, but that the error was so minor that it could not have influenced the jury’s verdict and therefore applied the curative proviso.
[10] While she agreed that the trial judge had erred, Ryan J.A. appears to have disagreed with Finch C.J.B.C., who was in dissent, on the nature of the trial judge’s error. For her part, Ryan J.A. accepted the Crown’s contention that one may distinguish between evidence of flight, per se, and evidence concerning the “manner” of flight — in this case, Mr. White’s “failure to hesitate before fleeing” (para. 145).
[11] However, Ryan J.A. took the view that the trial judge’s instruction on the matter of post-offence conduct was equivocal as to its meaning. On one reading, it could be taken to indicate that the trial judge was inviting the jury to consider Mr. White’s flight itself in determining whether he had the requisite intent for second degree murder. Such an invitation constituted an error of law. Nevertheless, Ryan J.A. concluded that, in the overall context of the case, the error was a minor one and it was unlikely to have affected the jury’s deliberations. She therefore dismissed the appeal.
B. Finch C.J.B.C. [12] Finch C.J.B.C. would have allowed the appeal. In his view, the trial judge had erred in his instructions to the jury and that error could not be saved using the curative proviso found in s. 686(1) (b)(iii) of the Criminal Code .
[13] After reviewing the relevant precedents, including Arcangioli and White (1998), he concluded that, when an accused person has admitted the actus reus of a criminal act, but denies a specific level of intent, a “no probative value” instruction should be given in relation to post-offence conduct because such evidence is not relevant to the determination of the accused’s level of culpability. Applying this principle to the case at bar, he rejected the Crown’s contention that the manner of Mr. White’s flight was inconsistent with his theory of an accidental shooting, holding instead that his manner of flight was consistent with both manslaughter and murder. He explained that “[f]rom ‘instant’ flight without hesitation, murderous intent is not the only available reasonable inference”; rather, it “is as consistent with the awareness he would have had of his conduct in the violent course of events that culminated in Mr. Matasi’s being shot, even if unintentionally, as with his having intended to kill Mr. Matasi” (paras. 75-76).
[14] In light of this, Finch C.J.B.C. concluded that the trial judge had erred in failing to give a “no probative value” instruction (para. 78). In fact, in his view the error was serious, because the trial judge had expressly instructed the jury that they could consider Mr. White’s “post-event conduct in fleeing the scene” in determining whether he had the requisite intent for second degree murder (paras. 80 and 93).
[15] Finch C.J.B.C. took the view that this was not an appropriate case in which to apply the curative proviso. The only question before the jury was whether Mr. White had the requisite intent for second degree murder. Therefore, the error in the trial judge’s instruction could not be characterized as “minor”. Nor was the evidence against Mr. White “so overwhelming that any other verdict would have been impossible to obtain” (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34). Consequently, he would have ordered a new trial.
III. Issues [16] In my view, this case raises three issues:
(1) How do the rules of evidence as they relate to admissibility, limiting instructions and cautions apply to post-offence conduct evidence?
(2) Did the trial judge’s charge to the jury in this case satisfy the requirements of the rules of evidence as they apply to limiting instructions and cautions?
(3) If not, is this an appropriate case in which to apply the curative proviso?
I will deal with each issue in turn.
IV. Analysis A. How Do the Rules of Evidence as They Relate to Admissibility, Limiting Instructions and Cautions Apply to Post-Offence Conduct Evidence?
(1) The Applicable Precedents
[17] It has long been accepted that actions taken by an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence of their culpability for that crime. Examples of such actions include flight, the destruction of evidence, or the fabrication of lies. However, in recent years the terminology used to refer to such evidence has undergone certain changes.
[18] At one time, it was referred to as “consciousness of guilt” evidence. The value of such evidence was explained by Weiler J.A. in R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at p. 629:
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.
The term “consciousness of guilt” evidence was used to describe such conduct because it was used to support an inference that the person in question believed themselves to be guilty of the crime of which they were accused. In some cases, certain aspects of a person’s after-the-fact conduct can best be explained by the theory that they are guilty of the crime of which they stand accused. For instance, if a person admits committing an act which resulted in death, evidence that the person hid the weapon or fled from the scene may (though not must) support an inference that they were guilty of culpable (as opposed to non-culpable) homicide (Peavoy, at p. 630). Such “after-the-fact” conduct is therefore admissible as circumstantial evidence.
[19] However, in White (1998), this Court abandoned the label “consciousness of guilt” when describing evidence of after-the-fact conduct because such a label was thought to be unduly narrow and somewhat misleading. After-the-fact conduct may in fact be put to a wide variety of uses and its utility is not confined to supporting an inference that the accused had a “guilty mind”. As Major J. noted for the Court, at para. 20:
“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.
Major J. went on to suggest that this general category of evidence should be referred to by a more neutral term, such as “post-offence conduct”. This label would avoid the twin pitfalls of confining the relevance of such conduct to questions concerning the accused’s state of mind and of subverting the presumption of innocence.
[20] As Ryan J.A. pointed out, this change in nomenclature may have created conceptual difficulties that did not exist before. The reason is that “consciousness of guilt” evidence refers to a relatively narrow category of actions, usually attempts to evade detection or prosecution, that can support an inference of guilt when taken alone (C.A. reasons, at paras. 128-29). That is, evidence that a person considers themselves guilty of a crime can support an inference of guilt of that crime. Jurisprudence has grown up around the sort of warnings and limiting instructions that ought to be given to juries with respect to this relatively narrow category of evidence.
[21] The category of “post-offence conduct” evidence is much broader as it refers to anything done by the accused after the commission of the offence. The shift in nomenclature may therefore have led some trial judges to believe that any evidence of the accused’s actions after the offence must be subject to special warnings and limiting instructions (see C.A. reasons, at para. 129, per Ryan J.A.). This is not the case.
[22] The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), “[e]vidence 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” (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantial evidence. Thus, while the term “consciousness of guilt” may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged — provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated.
[23] That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries with it a substantial risk of jury error (Gudmondson v. The King (1933), 60 C.C.C. 332 (S.C.C.)). Jurors may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998), at para. 57) without giving proper consideration to alternate explanations for the conduct in question.
[24] In most cases,
the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added; White (1998), at para. 57.]
[25] One instance in which the risk of jury error becomes especially acute arises when the accused has confessed to engaging in some form of criminal conduct related to the crime of which he stands accused. In such cases, post-offence conduct that supports an inference that the accused had a “guilty conscience” may be of little or no use in determining his level of culpability.
[26] Such a set of circumstances arose in Arcangioli. Mr. Arcangioli had been accused of stabbing someone in the course of a large brawl, during which a number of individuals had combined to assault a single victim. Mr. Arcangioli had been seen fleeing the scene after the victim had been stabbed, and the prosecution sought to rely on this as circumstantial evidence of “consciousness of guilt”. The trial ju