After the fact conduct is evidence the Crown sometimes will present at trial in order to prove guilt of the criminal act alleged. It is an area to be cautious about, particularly in relation to its admissibility and the use the Court can make of this evidence.
After the fact conduct can be relevant as circumstantial evidence to a determination of guilt, if it is relevant to a fact in issue. Sometimes a limiting instruction is necessary, for example, flight after a homicide, wherein the evidence of flight might not assist a trier of fact in determining the mens rea between murder and manslaughter. This is particularly true when there may be one or more explanations for an accused’s conduct.
After the fact conduct must be relevant to an issue at trial. “In order for evidence to satisfy the standard of relevance, it must have ‘some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence’”: R. v. White, 2011 SCC 13 at para 36. In White, the Supreme Court of Canada affirmed its decision in Arcangioli and White (1998) in relation to the relevance of post offence conduct. “A ‘no probative value’, or limiting instruction will be required when the accused’s post offence conduct is ‘equally explained by’ or ‘equally consistent with’ two or more offences…This proposition neither complicates nor goes beyond the basic rule of relevance: to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is ‘equally explained by’ or ‘equally consistent with’ either determination of a live issue are three ways of saying the same thing”: White, at para 37.
Should you need advice regarding a criminal allegation involving after the fact conduct, our Team at La Liberté Cronin & Company are standing by and ready to help.