Is This Going to Make Me Look Bad?

PUBLISHED ON November 19, 2023

Sometimes, what we say or do after an event happens can be used against us at trial. This is called “post-offence conduct”. This is because evidence of what a person said or did after an offence was committed can be relevant to deciding whether it was that person who committed it and/or what was their ‘state of mind’ when they committed it.

Examples of post-offence conduct

There is no all-encompassing definition of “post-offence conduct.” It is fact-specific for each case.  Some examples of post offence conduct that are often seen include:

  • Flight from the scene
  • Failure to render assistance to someone who has been injured
  • Sudden, unexplained wealth
  • Disposal of physical items related to the offence
  • Demeanour evidence; how a person behaved
  • Post-offence association with the co-accused
  • Changes in activity/lifestyle

These are all types of post-offence conduct – circumstantial evidence that allows for an inference of guilt.

The Need to be Careful

This doesn’t mean this evidence is automatically included at trial. Sometimes, the evidence has no probative value and is excluded from consideration by the judge. For example, suppose A is charged with shooting B. A flees the scene and is later charged with first-degree murder. Suppose A’s position is that he was robbing B and accidentally shot B and is therefore guilty of manslaughter, not murder. In this case, the lawyer would argue that “flight” from the scene has no probative value. This is because a person may flee the scene of a shooting for any number of reasons, including to avoid arrest, to minimize evidence of the person’s connection to the crime, because they were involved in committing a different, uncharged offence, or to buy time. The lawyer may argue that as a matter of logic and human experience, flight is equally consistent with a range of less serious offences, including robbery, manslaughter, or accidental shooting.

When permitted, however, judges may use this evidence, along with all the other evidence in the case, in deciding whether the Crown Attorney has proven the case – though a judge must not infer guilt from the evidence unless, when it is considered with the rest of the evidence, that guilt is the only rational inference that can be made from all of the evidence.  

As can be seen, judges must be careful about inferring that a person is guilty on the basis of this type of evidence because there might be other explanations for the conduct. Again, sometimes the conduct has nothing to do with participation in the event. Because of this, a judge is not allowed to draw any incriminating inferences from the conduct without ruling out alternative explanations for it.  

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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