R. v. Adan, 2019 ONCA 709

AFTER-THE-FACT CONDUCT EVIDENCE - JURY INSTRUCTIONS

Background

 The Appellant appeals his conviction on the basis that the trial judge erred in instructing the jury on the permissible and impermissible use of after-the-fact conduct evidence.

 A jury convicted the Appellant of attempted murder. The Appellant attended a gathering at the victim Peter Williams’ apartment. The Appellant stayed overnight at Williams’ apartment. The following morning, the two got into argument. The Appellant shot Williams five times. Williams survived the gun shots but later died of unrelated causes. Although Williams died prior to the Appellant’s trial, he was able to testify at the co-accused, Johnson’s, preliminary inquiry.

 Following the gunshots, the Appellant and Johnson fled the scene without calling 911 for assistance, took a cab, and eventually went to the apartment of a female acquaintance. There the Appellant changed his clothes and disposed of the gun. The Appellant and Johnson each returned to Toronto separately.

 At the pre-charge conference the Crown indicated they would be relying on the after-the-fact conduct evidence. The Appellant’s trial counsel made no submissions related to this evidence. The trial judge stipulated that he did not intend to instruct the jury at length on the issue given its relatively minor role in the Crown’s case. Neither the Crown or defence objected to this. The defence did not refer the after-the-fact conduct evidence in his closing submissions. Defence counsel did not object to the trial judge’s charge to the jury on post-offence conduct.

 The trial judge’s instruction to the jury began by describing the after-the-fact conduct: the Appellant’s flight from the scene, his change of clothes, and the disposal of the gun. He then invited the jury to consider the evidence in two-steps: (1) determining what the Appellant actually did after the shooting, and (2) consider whether the Appellant acted in this way because he committed the offence. The trial judge warned jurors about overvaluing this evidence and that they are required to consider alternate explanations such as fear and panic.

 The Law: After-the-Fact Conduct Evidence

 Juries are susceptible to mishandling after-the-fact conduct evidence. As a result, jury instructions are necessary to minimize such misuse. Whether a trial judge’s instructions are sufficient, however, is case-specific and depends on the nature of the conduct involved, the use made of the evidence at trial, the instructions given about its use, and the positions of the parties about the adequacy of those instructions.

 Appellate review of jury instructions requires a functional approach. Appellate courts must ask whether the charge, as a whole enabled the trier of fact to decide the case in conformity with the governing legal principles and the evidence adduced at trial. The alleged error is examined in the context of the entire charge and trial as a whole (See R v Calnen, 2019 SCC 6). A jury must be properly instructed, not perfectly instructed. An important factor in appellate review of jury instructions is the position of trial counsel. While the failure to object is not fatal, it is an important consideration.

 Post-offence conduct is circumstantial evidence. Evidence of after-the-fact conduct is admissible when it is relevant, material and not contrary to an admissibility rule. It is relevant if, as a matter of common sense, it makes the fact for which it is tendered more or less probable than it would without the evidence. It is material if it is offered to prove fact in issue. For example, after-the-fact conduct evidence is material when tendered to prove fault or to distinguish between levels of culpability. Alternate explanations for post-offence conduct do not render the evidence irrelevant or immaterial.

 Application to this Case

While the trial judge failed to spell out the permitted and prohibited uses of the evidence, and failed to include a description of all the after-the-fact conduct (i.e. Appellant failing to assist the victim), the Appellant did not suffer prejudice from these deficiencies. The dominant issue at trial as how the shooting transpired, not what the Appellant did following the shooting. The post-offence conduct was not prominent in rebutting the Appellant’s defence of accident and self-defence.

Watt JA, writing for the court, dismisses the appeal from conviction (and from sentence).

 Read the full decision here.