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R. v. S.C.B. (1997), 104 O.A.C. 81 (CA)


[33] The admissibility of after-the-fact conduct by an accused to support an inference that the accused did not commit the crime alleged should be approached on a principled basis. If the evidence is relevant, its probative value is not substantially outweighed by its prejudicial effect and it is not excluded by some policy-driven exclusionary rule, the evidence should be received when proffered by the defence [see footnote 1]: R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310, at 327 (C.A.).

[34] After-the-fact conduct by an accused which is reasonably capable of supporting an inference adverse to the accused is admissible as long as its probative value outweighs its prejudicial effect and there is no exclusionary rule requiring the exclusion of the evidence: R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.). We see no reason why after-the-fact conduct, which is reasonably capable of supporting an inference favourable to the accused, should not also be received unless its probative value is substantially outweighed by its potential prejudicial effect. We are unaware of any evidentiary rule or theory of relevance which would admit evidence that an accused ran away when confronted by the police as evidence of guilt, but would exclude evidence that an accused effectively turned himself over to the police for whatever investigative purposes they desired, as evidence supporting an inference that the accused did not commit the crime.

[35] We also reject the contention that evidence that an accused voluntarily provided samples and other material to the police for forensic testing cannot be admitted on behalf of the accused because it is well-known that some guilty people have provided similar samples. This submission is akin to saying that evidence of flight should always be excluded because innocent persons have been known to flee the scene. The fact that the inference favourable to the accused is not the only available inference is no bar to admissibility [see footnote 2].

[36] The admissibility of after-the-fact conduct is not without its risks. There is always the danger that the trier of fact will read too much into that behaviour. Conduct, which is no more than unusual, rash or thoughtless can take on an unwarranted significance when viewed in hindsight at trial. The danger that after-the-fact conduct will be overemphasized by a trier of fact exists whether evidence of that conduct is offered by the Crown or the defence. That risk is best avoided by a judicious use of the power to exclude prejudicial evidence even though it has some probative value.

Jim O'Neil, LL.B.

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