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AFTER THE FACT CONDUCT OF ACCUSED-INFERENCES OF GUILT

R. v. Hawkins, 2011 NSCA 6 (CanLII)


[71]         The Crown argued that the proposed evidence from Ms. Menzies, Staff Sgt. Rutherford and Cst. Best would demonstrate that, when the police continued their focus on the appellant, he decided to flee the jurisdiction, lying as to his real destination to avoid detection.  Furthermore, it contended the evidence was really part of the narrative.  Without it, the jury would be left with the wrong impression that the appellant had simply and innocently followed through on his plan to go out West to work.

[72]         The Crown and the defence referred to such leading authorities as R. v. Argangioli, 1994 CanLII 107 (S.C.C.), [1994] 1 S.C.R. 129, (1994), 87 C.C.C. (3d) 289 (S.C.C.) and R. v. White, 1998 CanLII 789 (S.C.C.), [1998] 2 S.C.R. 72, (1998), 125 C.C.C. (3d) 385 (S.C.C.).  The defence also relied on R. v. Turcotte, 2005 SCC 50 (CanLII), 2005 SCC 50.  The defence stressed the danger in admitting evidence of post-offence conduct to support an inference of consciousness of guilt on the basis that it can be highly ambiguous and susceptible to jury error.  The defence argued that the proposed evidence was dated.  It related to events more than one week following the date of the offence.  In addition, there was ample innocent explanation for the appellant to have lied to the police about his travel plans and leaving Nova Scotia, other than consciousness of guilt for his alleged culpable involvement in the homicide of Shelly Boutilier.

...

 In R. v. Arcangioli, supra., Major J., for the court, commented on the well-entrenched principle of a trier of fact being able to infer guilt from evidence demonstrating consciousness of guilt.  He wrote (p. 143):

It is well established that an inference of guilt may be drawn from circumstantial evidence such as flight from the scene of a crime or the fabrication of lies relating to the offence in question. However, in charging a jury, a trial judge must take care to ensure that evidence of flight is not misused. The danger exists that a jury may erroneously leap from such evidence to a conclusion of guilt if not properly instructed, see McCormick on Evidence, supra, vol. 2, § 263, at p. 182:

. . . in many situations, the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the “wicked” generally rather than resolving the issue of guilt of the offense charged.

[79]         Major J. quoted with approval the approach to such evidence articulated in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977) (pp. 144-145):


A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; one was committed in Pennsylvania and the other in Florida. The reported decision concerns the latter. There was evidence that the accused fled when approached by FBI agents. Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972), § 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing four inferences:

(1)  from the accused's behavior to flight,

(2)  from flight to consciousness of guilt,

(3)  from consciousness of guilt to consciousness of guilt concerning the  offence in question,

(4)  from consciousness of guilt of the offence in question to actual guilt of the offence in question.

Clark J. held that the third inference could not be drawn. Since the accused knew that he was wanted for a robbery committed in Pennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence.

[80]         In Arcangioli, the appellant was charged with aggravated assault in relation to a stabbing.  The appellant had fled from the scene.  He testified that he had been involved in an assault on the victim, but had not been a party to any stabbing.  The jury was charged that they could consider the appellant’s flight in arriving at a verdict, but that the evidence was not conclusive as sometimes people flee in panic, even if they are entirely innocent.  Major J. concluded that because the accused’s conduct could be equally explained by reference to consciousness of guilt of another offence, and the accused had admitted to culpability to one of those, the trial judge was required to charge the jury that such evidence has no probative value.

[81]         The Supreme Court of Canada again discussed the role of consciousness of guilt evidence in R. v. White, supra.  The appellants were convicted of an execution-style killing of a victim in Ottawa.  They left Ottawa for two weeks.  They were in violation of their parole and committed two armed robberies elsewhere in Ontario.  On their return to Ottawa, they fled from the police, and tried to dispose of a firearm that was linked to being used in the robberies as well as the murder.  The appellants objected to the jury being able to consider this evidence as consciousness of guilt with respect to the murder.  Major J. again wrote the unanimous reasons for judgment.  He emphasized it is generally for the jury to weigh competing inferences that might be drawn from evidence of flight or other post-offence conduct.  Major J. explained:

[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.

...

[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.


[82]         Here, the appellant denied any culpable involvement in the homicide of Shelly Boutilier or any other offence.  Instead, he argued that the obvious falsehoods to his probation officer and the police were motivated not by flight from the authorities but by a desire to pursue his planned move to British Columbia without police surveillance.  For example, he insisted in his statements to the police of July 19 and 21, 2006 that he had a job in the Vancouver area.  His employer was unable to pick him up at the airport because the police had arrested him when he got off the plane, and he had an open return plane ticket to Nova Scotia and would have returned voluntarily on request.

[83]         In my opinion, it would be up to the jury to consider the competing inferences and assign whatever weight to this evidence they should.  Therefore, the trial judge did not err in admitting this evidence.

Jim O'Neil, LL.B.

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