Dennis Robert White Appellant v. Her Majesty The Queen, 2011 SCC 13

SUPREME COURT OF CANADA Citation: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 Date: 20110311 Docket: 33464 Between: Dennis Robert White Appellant and Her Majesty The Queen Respondent Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. Reasons for Judgment: (paras. 1 to 103) Concurring Reasons: (paras. 104 to 131) Dissenting Reasons: (paras. 132 to 198) Rothstein J. (LeBel, Abella and Cromwell JJ. concurring) Charron J. (Deschamps J. concurring) Binnie J. (McLachlin C.J. and Fish J. concurring) R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433 Dennis Robert White Appellant v.

Her Majesty The Queen Respondent Indexed as: R. v. White 2011 SCC 13 File No.: 33464. 2010: May 14; 2011: March 11.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for british columbia Criminal law — Trial — Charge to jury — Post-offence conduct — Murder — Accused fleeing crime scene after shooting victim — Accused conceding at trial to having shot victim unlawfully but claiming lack of intent to kill — Crown stating in closing argument that accused fled with no hesitation, shock or uncertainty — Trial judge instructing jury to be “careful” in considering post- offence conduct — Whether lack of instruction stating that post-offence conduct had no probative value constituting error of law — If so, whether curative proviso applicable — Criminal Code, R.S.C. 1985, c.

C-46, s. 686(1) (b)(iii). The accused and the victim were engaged in a physical altercation when a loaded handgun in the accused’s possession was fired into the victim’s chest, killing him instantly. Immediately and without hesitation, the accused fled the scene. He was later apprehended by police and charged with second degree murder. Throughout the Crown’s case, the identity of the shooter was a live issue, but by trial’s end, the accused effectively admitted to manslaughter, and thus the only live issue before the jury was whether he had the requisite intent for murder.

In response to the accused’s theory according to which he shot the victim accidently as the two grappled with one another, the Crown pointed out in its closing argument that the accused had fled with “no hesitation here, no shock, no uncertainty on his part” and that one would expect hesitation if the shot had been anything other than intended.

In his charge to the jury, the trial judge referred to the accused’s post-offence conduct on two occasions, namely in the context of his instructions on the issue of intent where he stated: “You may consider [the accused’s] post-event conduct in fleeing the scene, but you should also be careful with it” and “it may not be of much assistance in assessing his precise state of mind at the time the gun was fired”, and in his

summary of the Crown’s theory of the case. The accused was convicted as charged. On appeal, the accused argued that the trial judge should have specifically instructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the issue of intent, because that evidence was consistent with both manslaughter and second degree murder. The majority of the Court of Appeal upheld the conviction, concluding that although the jury charge was deficient, the error was minor and could have no impact on the final verdict.

The dissenting judge concluded that the trial judge had erred in failing to give a “no probative value” instruction. In his view, the error was serious such that it could not be saved by using the curative proviso found in s. 686(1) ( b )(iii) of the Criminal Code . Held (McLachlin C.J. and Binnie and Fish JJ. dissenting): The appeal should be dismissed.

Per LeBel, Abella, Rothstein and Cromwell JJ.: This case is distinguishable from R. v. Arcangioli, (SCC),[1994] 1 S.C.R. 129, on the facts, and the jury charge was adequate. Even assuming that the trial judge erred in his instructions to thejury, the error was harmless and should be saved by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The principle that post-offence conduct may constitute circumstantial evidence of guilt remains good law. At its heart, thequestion of whether such evidence should be subject to a “no probative value” limiting instruction is simply a matter of relevance.

Aswith all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis. Given thatpost-offence conduct is not fundamentally different from other kinds of circumstantial evidence, its admissibility and the formulation oflimiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence.

In particular, tobe admissible, post-offence conduct evidence must be relevant to a live issue and must not be subject to a specific exclusionary rule; itmay also be excluded pursuant to the exercise of a recognized judicial discretion. It is also possible, and often appropriate, for a trialjudge to warn the jury of the risks associated with certain types of evidence. The purpose of such a caution is to alert the jury to thedanger, which has been recognized through judicial experience, but then allow the properly informed jurors to evaluate the evidence withcare.

Moreover, there is an important distinction to be made between a limiting instruction and a warning or caution. A limitinginstruction tells the jury they must not consider the evidence for one or several purposes, and a warning or caution leaves the evidencefor the jury to consider, but warns them to be careful with it. In the present case, the judge did warn the jury to be careful with theevidence relating to the accused’s flight and that there may be one or more explanations for his conduct. Arcangioli and its successor cases, such as R. v.

White, (SCC), [1998] 2 S.C.R. 72, do not support the verybroad proposition that post-offence conduct is generally inadmissible in determining whether an accused is guilty of manslaughter ormurder. Indeed, they stand for the proposition that a “no probative value” instruction will be required when an accused’s post-offenceconduct is “equally explained by” or “equally consistent with” two or more offences. Those cases should be understood as a restatement,tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue.

Whether ornot a given instance of post-offence conduct has probative value with respect to an accused’s level of culpability depends entirely on thespecific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. Furthermore, when the question iswhether certain evidence should be removed from the jury because it is irrelevant, it is enough to evaluate whether that evidence isrelevant to the material fact at issue as a matter of logic and human experience. The risk that a jury will misuse or be misled by an itemof evidence should not inform the relevance determination.

Instead, this risk is appropriately addressed through the trial judge’sdiscretion to exclude evidence whose prejudicial effect outweighs its probative value or through a caution in the jury charge. In this case, the trial judge’s instructions to the jury on the question of post-offence conduct were adequate and did notconstitute an error of law. Indeed, the conduct alluded to by the Crown was not the flight itself, but rather the accused’s failure tohesitate after his gun was fired into the victim’s chest before he fled the scene.

This is different from the question at issue in Arcangioli,which concerned the simple act of fleeing from the scene. The situation in the present case is no different from that in R. v. Jaw, 2009SCC 42, [2009] 3 S.C.R. 26, in that a jury could legitimately infer that the accused’s lack of hesitation after the gun was fired belied hisclaim that the shooting was accidental. Evidence of such a failure is thus relevant to the question of whether he had the requisite intentfor second degree murder.

Moreover, the evidence was not tainted by the hallmark flaws associated with demeanour evidence so as tobe irrelevant, nor was it an invitation to infer a murderous intent from the way the accused looked just before he fled. Lack of hesitationprior to flight is an objective fact, from which the finder of fact, and not a witness is asked to draw an inference of no shock or surprise.

While it is true that using evidence of lack of hesitation prior to flight presupposes a normal range of reactions, and while it may be thatnot everyone will respond in the same way, divergence from that norm, though not determinative, is more consistent with an intentionalshooting than with an accident. It would therefore have been wrong for the trial judge to instruct the jury that this evidence had noprobative value in determining intent.

As well, while it is theoretically possible to read the trial judge’s statement as an invitation toconsider the accused’s act of flight as evidence of consciousness of guilt, this would not be a reasonable

interpretation given the contextin which the statement was made. It was, however, appropriate for the trial judge to warn the jury to be careful with the post-event conduct evidence and tellthem that it might not be of much assistance. Indeed, there could have been other explanations for the accused’s failure to hesitate. While the notion that a person who accidentally shoots someone to death will normally have the immediate reaction of hesitating orshowing some other sign of surprise is well founded, there may be exceptional individuals who do not respond in the normal way.

Thecaution was adequate to alert the jury to the risk associated with that evidence and to allow them to properly weigh it. Nevertheless, if there was an error in the trial judge’s instructions, it should be saved by the curative proviso in s. 686(1)(b)(iii). It would have been ideal for the trial judge, when instructing the jury on the matter of intent, to refer expressly and exclusively tothe accused’s lack of hesitation, as opposed to his “conduct in fleeing the scene”.

However, even assuming that the statement waspersistently or intractably ambiguous and therefore constitutes an error, such an error is a minor one. There is no requirement forperfectly instructed juries, and given the nature of the purported error, it was unlikely to have had any effect on the jury’s deliberations. Per Deschamps and Charron JJ.: There is agreement with Binnie J.’s analysis on the law concerning the use that may bemade of evidence of post-offence conduct.

As he stresses, it is definitely wrong to suggest that evidence of anything said or done by anaccused after the commission of an offence gives rise to special rules of admissibility, or that it is subject to special warnings as to whatuse may be made of it by the trier of fact. There is also agreement with Binnie J. that judicial experience has taught us that in some casesjurors have found certain types of evidence more persuasive than warranted, thus making it necessary in appropriate cases to caution thejury accordingly or remove the evidence from their consideration altogether.

Furthermore, it is agreed that inferences drawn by awitness, based on his or her observation of the accused’s demeanour, may well call for a special caution or be subject to an exclusionorder. However, there is disagreement with Binnie J. on the significance he attaches to Crown counsel’s reference in his closingaddress to the fact that the accused immediately fled the scene “with no hesitation here, no shock, no uncertainty”. The Crown did notinvite the jury to draw an impermissible inference of guilt.

Taken in context, Crown counsel’s comment could only have beenunderstood by the jury as a rhetorical argument that no evidence supported the defence theory of accidental discharge of the firearm. The failure of defence counsel to raise any issue at trial regarding Crown counsel’s closing address or the trial judge’s instructions on theevidence of flight further supports this

interpretation.

There is also no support in the record for the accused’s contention, accepted by Binnie J., that this case is a re-run of Arcangioli . In that case, the accused admitted to participating in the culpable event and the only issue at trial was his level of culpability. Conversely, in the present case, the identity of the shooter was a very live issue and the evidence of flight was highly relevant to the issue of identification. Moreover, it formed an inextricable part of the narrative as every witness to the event described the shooter, gun in hand, fleeing the scene.

The evidence was therefore admissible at trial and properly left for the jury’s assessment. The trial judge’s instructions regarding this evidence contained no error. The evidence of flight was reviewed for the jury in this context and its significance would have been properly understood.

In addition, on the question of intention, the trial judge took care to instruct the jury that they should “be careful with” the evidence in question, as it might not tell them “much more than that for any number of reasons he would be in some kind of trouble if he stayed at the scene and it may not be of much assistance in assessing his precise state of mind at the time the gun was fired”. In the context of this trial, no more was required. Accordingly, there is agreement with Rothstein J. that the jury charge contained no error, and there is no reason to interfere with the jury’s verdict.

Per McLachlin C.J. and Binnie and Fish JJ. (dissenting): The rules governing jury instructions where evidence relied on by the prosecution is not probative, or if probative is outweighed by unfair prejudice, are outlined in recent decisions in this Court in cases such as Arcangioli and White . The present case is not distinguishable in principle from Arcangioli . Indeed, as in Arcangioli , the conduct of the accused in the immediate aftermath of the offence was a significant element in the Crown’s argument to the jury, and in the trial judge’s final instructions.

As well, there was the danger in this case that the jury might fail to take account of alternative explanations for the accused’s behaviour, and that they might mistakenly leap from such demeanour evidence to a conclusion of guilt. Had the issue of identity been put to the jury, undoubtedly evidence of flight would have been highly relevant. It might have been used by the jury, along with other evidence to find the accused to be the shooter. In the end, however, identity was admitted.

Accordingly, the accused’s post-offence conduct was not simply put forward as part of the narrative; it was put forward as proof of guilt of second degree murder. On the basis of Arcangioli , that evidence was inadmissible to prove the specific intent necessary to support a conviction for murder. Evidence of post-offence conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limited admissibility; the trier of fact may use it for one or more purposes but not for another.

It follows that its introduction imposes on the trial judge in a jury trial the obligation to explain both the permitted and prohibited use of the evidence. The need will depend on the facts. One of the problems with evidence of post-offence conduct is that often the inferences sought are too equivocal for the evidence to be of any value. The question, as always, is the strength of the inferential link between the evidence in question and the fact sought to be established.

If the evidence introduced in relation to a contentious issue has no probative value — or value that depends entirely on speculative or unreasonable inferences — it is irrelevant and should not be cluttering up the jury’s deliberations. In other situations, the inferences urged by the prosecution from post-offence conduct are impermissible for legal reasons rather than illogicality, and the evidence may be effectively withdrawn from the jury with a “no probative value” instruction.

Whether or not a special caution is required with respect to post-offence conduct will depend not on whether that evidence alone can support an inference of guilt but on the court’s appreciation of the risk of impermissible inferences in relation to the issues on which the prosecution in its jury address places reliance. There is no doubt that post-offence conduct is a type of circumstantial evidence and that when it comes to the need for a limiting instruction, much will depend on the facts.

However, it is not enough simply to evaluate whether evidence as to, in this case, the accused’s “no hesitation here, no shock, no uncertainty on his part” might be portrayed as relevant to the issue of murderous intent merely as a matter of logic and human experience. Rather, relevance depends on the evidence having probative value in relation to a live issue. If the post-offence evidence of demeanour is not probative it is not relevant.

As to probity, it is necessary to evaluate demeanour evidence having regard to the practical lessons that have accumulated in the courts over many years with respect to the potentially misleading nature of certain types of post-offence demeanour. While the bare fact of flight from the scene may be objective the same cannot be said of what a bystander interprets as a momentary lack of hesitation or absence of a demonstration of “shock” or “uncertainty”.

This type of evidence depends on the unspoken assumptions that hesitation is normal whereas an immediate reaction is abnormal, and that the conduct of the accused fell below some assumed but unarticulated standard of procrastination. Moreover, this assumed departure from the assumed norm is said to give rise — potentially — to further inference of murderous intent. The double inference is problematic and relies on the type of subjective after-the-fact evaluation which experience has shown to be unreliable.

In this case, the Crown specifically urged the jury to infer murderous intent from “no hesitation here, no shock, no uncertainty on his part, just immediate flight”. The Crown emphasis was not on the act of flight (which was an objective fact) but on the alleged demeanour of the accused which was a matter of

interpretation and opinion by a stranger necessarily calibrated according to the stranger’s own subjective expectation and cultural frame of reference about what would be expected. It seems equally plausible to conclude that a person in possession of an illegal handgun that has just shot a stranger — accidentally or otherwise — would run away as fast and far as he could without any hesitation at all. The use of such demeanour evidence in this case ought not to have been permitted to go to the jury on the critical, and virtually the only, issue in the case — murderous intent or accident.

A jury should not be invited to draw unequivocal inferences from equivocal conduct based on attributed motives and subjective

interpretations or misinterpretations of physical reactions. Moreover, because the accused’s lack of hesitation and instantaneous flight are equally explainable by the consciousness of more than one offence, the conduct has no probative value in relation to intent. The Crown asked the jury to draw speculative and unreasonable inferences on the issue of specific intent and the jury ought to have been instructed that the evidence of flight and the pre-flight demeanour was of no probative value on the issue of murderous intent.

In addition, failure of the accused’s trial counsel to object to this aspect of the charge should not deny him relief. Finally, the prosecution’s case against the accused for second degree murder was not overwhelming. The jury had little to work with in finding a way to choose between the hand to hand combat scenario suggesting manslaughter and the downwards shooting of an individual already on the ground which might suggest second degree murder.

In these elusive circumstances, post-offence conduct of reaction time and demeanour took on considerable importance, which is why, no doubt, the Crown laid considerable emphasis on it in its closing argument. The error was therefore not harmless, and the curative proviso in s. 686(1) ( b )(iii) should have no application. Cases Cited By Rothstein J.

Distinguished: R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129; R. v. White, (SCC), [1998]2 S.C.R. 72; discussed: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; referred to: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v.Peavoy (1997), (ON CA), 34 O.R. (3d) 620; Gudmondson v. The King (1933), (SCC), 60 C.C.C.332; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. B. (L.) (1997), (ON CA), 35 O.R. (3d) 35; Morris v. TheQueen, (SCC), [1983] 2 S.C.R. 190; R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97; R. v. Khela,2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v.

Hurley, 2010 SCC 18, [2010] 1S.C.R. 637; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Curran (2004), (ON CA), 188 O.A.C. 1; R. v.Levert (2001), (ON CA), 150 O.A.C. 208; R. v. Trotta (2004), (ON CA), 191 O.A.C. 322, rev’d2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29; R. v. Paré, (SCC), [1987] 2S.C.R. 618; R. v. Chartrand, (SCC), [1994] 2 S.C.R. 864; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; R. v. Khan,2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239;R. v.

Jacquard, (SCC), [1997] 1 S.C.R. 314. By Charron J. Referred to: R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97; R. v. Arcangioli, (SCC),[1994] 1 S.C.R. 129. By Binnie J. (dissenting) R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97; R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29; R.v. Arcangioli, (SCC), [1994] 1 S.C.R. 129; R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v. Ménard, (SCC), [1998] 2 S.C.R. 109; R. v. Campbell (1998), (BC CA), 122 C.C.C. (3d) 44; Gudmondson v.The King (1933), (SCC), 60 C.C.C. 332; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519; R. v.

Peavoy (1997), (ON CA), 34 O.R. (3d) 620; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v. MacKinnon (1999), (ON CA), 43 O.R. (3d) 378; R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26;R. v. Figueroa, 2008 ONCA 106, 58 C.R. (6th) 305; R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293; R. v. Symonds(1983), (ON CA), 9 C.C.C. (3d) 225; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v. B. (S.C.)(1997), (ON CA), 36 O.R. (3d) 516; R. v. Bisson (1997), (QC CA), 114 C.C.C. (3d) 154; R. v.Bennett (2003), (ON CA), 67 O.R. (3d) 257; R. v.

Baltrusaitis (2002), (ON CA), 58 O.R. (3d)161; R. v. Powell (2006), (ON SC), 215 C.C.C. (3d) 274; R. v. Marinaro, (SCC), [1996] 1 S.C.R.462, rev’g (1994), (ON CA), 95 C.C.C. (3d) 74; Thériault v. The Queen, (SCC), [1981] 1 S.C.R.336; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134; R. v. Charlebois, 2000 SCC 53, [2000]2 S.C.R. 674; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii). Authors Cited Canadian Oxford Dictionary, 2nd ed.

Don Mills, Ont.: Oxford University Press, 2004, “demeanour”. Ontario. Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report). Toronto: Ministry of the AttorneyGeneral, 1998. Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008. Palmer, Andrew. “Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other ‘Guilty Behaviour’ in the Investigation andProsecution of Crime” (1997), 21 Melbourne U. L. Rev. 95.

Rondinelli, Vincenzo. “The Probative Force: Getting Inside the Guilty Mind and Keeping Out Equivocal Conduct” (2005), 26:3Criminal Lawyers’ Association Newsletter 38. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. by Alan W. Bryant, Sidney N. Lederman and Michelle K.Fuerst. Markham, Ont.: LexisNexis, 2009. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Ryan and Chiasson JJ.A.), 2009BCCA 513, 278 B.C.A.C. 177, 248 C.C.C. (3d) 499, 71 C.R. (6th) 266, 471 W.A.C. 177, [2009] B.C.J. No. 2276 (QL), 2009CarswellBC 3083, upholding the accused’s conviction for second degree murder. Appeal dismissed, McLachlin C.J. and Binnie andFish JJ. dissenting. Kathleen M. Bradley and Nikos Harris, for the appellant. Wendy L. Rubin, Q.C., for the respondent. The judgment of LeBel, Abella, Rothstein and Cromwell JJ. was delivered by Rothstein J. — I. Introduction

[1] In the early hours of December 3, 2005, Lee Matasi was killed by a gunshot to the heart. According to multipleeyewitnesses, he was shot by the appellant, Dennis Robert White. The two had been engaged in a physical altercation that began afterMr. Matasi made a disparaging remark to Mr. White, who was in possession of a loaded handgun. In the course of their struggle, thegun was fired into Mr. Matasi’s chest, killing him instantly. Mr. White immediately fled the scene, but was later apprehended by thepolice. [2] Mr. White was charged with second degree murder.

Throughout the Crown’s case, the identity of the shooter was alive issue. However, by trial’s end, counsel for the defence had effectively (though not formally) conceded that Mr. White had shot Mr.Matasi unlawfully and was therefore guilty of manslaughter. Thus, the only live issue before the jury was whether Mr. White had therequisite intent for second degree murder. The jury found that he did and convicted him on that charge. [3] Mr. White appealed his conviction to the B.C. Court of Appeal, alleging that the trial judge erred in his instructionsto the jury.

A majority of the Court of Appeal (Finch C.J.B.C. dissenting) dismissed the appeal, and Mr. White now appeals thatdecision before this Court. [4] Mr. White’s complaint centres on a piece of circumstantial evidence used by the Crown in its prosecution. At trial,counsel for the defence had developed a theory of the case according to which Mr. White had shot the victim accidentally as the twoangrily grappled with one another. As a small part of its response to this theory, the Crown pointed out in its closing argument: Note as well that the accused ran immediately after the shooting.

There is no hesitation here, no shock, no uncertaintyon his part, just immediate flight. One would expect hesitancy if the shot was anything other than the intended action of Dennis White.[A.R., at p. 563] [5] Counsel for the defence did not object to — or attempt to rebut — this line of argument, nor did he object to theway in which the trial judge presented the issue to the jury. Nevertheless, Mr. White appealed his conviction on the grounds that thetrial judge erred in his instruction to the jury in relation to the relevance of the Crown’s submission on this point. [6] Relying on this Court’s rulings in R. v.

Arcangioli, (SCC), [1994] 1 S.C.R. 129, and R. v. White, (SCC), [1998] 2 S.C.R. 72 (“White (1998)”), Mr. White argued on appeal that the trial judge should have specificallyinstructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the question beforethe jury. In his view, the evidence relied upon by the Crown was consistent with both manslaughter and second degree murder, and wastherefore irrelevant to the only live issue in the case.

Given the prejudicial nature of such evidence, the trial judge’s failure to provide a“no probative value” instruction was an error of law that irredeemably tainted the jury’s verdict and warranted the ordering of a new trial. [7] A majority of the Court of Appeal declined to order a new trial. It concluded that, although the jury charge wasdeficient, the error was a minor one and could have no impact on the final verdict. [8] For the reasons set out below, I would dismiss the appeal. This case is distinguishable from Arcangioli on thefacts, and in my view the jury charge was adequate.

In any case, even assuming that the trial judge erred in his instructions to the jury, Ibelieve the error to be harmless and would uphold the verdict under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. II. The Court of Appeal, 2009 BCCA 513, 278 B.C.A.C. 177 A. Ryan and Chiasson JJ.A. [9] Ryan J.A., writing for the majority, dismissed the appeal.

She found that the trial judge had erred, but that the errorwas so minor that it could not have influenced the jury’s verdict and therefore applied the curative proviso. [10] While she agreed that the trial judge had erred, Ryan J.A. appears to have disagreed with Finch C.J.B.C., who was indissent, on the nature of the trial judge’s error. For her part, Ryan J.A. accepted the Crown’s contention that one may distinguishbetween evidence of flight, per se, and evidence concerning the “manner” of flight — in this case, Mr.

White’s “failure to hesitate beforefleeing” (para. 145). [11] However, Ryan J.A. took the view that the trial judge’s instruction on the matter of post-offence conduct wasequivocal as to its meaning. On one reading, it could be taken to indicate that the trial judge was inviting the jury to consider Mr.White’s flight itself in determining whether he had the requisite intent for second degree murder. Such an invitation constituted an errorof law. Nevertheless, Ryan J.A. concluded that, in the overall context of the case, the error was a minor one and it was unlikely to haveaffected the jury’s deliberations.

She therefore dismissed the appeal. B. Finch C.J.B.C. [12] Finch C.J.B.C. would have allowed the appeal.

In his view, the trial judge had erred in his instructions to the juryand that error could not be saved using the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code. [13] After reviewing the relevant precedents, including Arcangioli and White (1998), he concluded that, when an accusedperson has admitted the actus reus of a criminal act, but denies a specific level of intent, a “no probative value” instruction should begiven in relation to post-offence conduct because such evidence is not relevant to the determination of the accused’s level of culpability.

Applying this principle to the case at bar, he rejected the Crown’s contention that the manner of Mr. White’s flight was inconsistent withhis theory of an accidental shooting, holding instead that his manner of flight was consistent with both manslaughter and murder. He

explained that “[f]rom ‘instant’ flight without hesitation, murderous intent is not the only available reasonable inference”; rather, it “is asconsistent with the awareness he would have had of his conduct in the violent course of events that culminated in Mr. Matasi’s beingshot, even if unintentionally, as with his having intended to kill Mr. Matasi” (paras. 75-76). [14] In light of this, Finch C.J.B.C. concluded that the trial judge had erred in failing to give a “no probative value”instruction (para. 78).

In fact, in his view the error was serious, because the trial judge had expressly instructed the jury that they couldconsider Mr. White’s “post-event conduct in fleeing the scene” in determining whether he had the requisite intent for second degreemurder (paras. 80 and 93). [15] Finch C.J.B.C. took the view that this was not an appropriate case in which to apply the curative proviso. The onlyquestion before the jury was whether Mr. White had the requisite intent for second degree murder. Therefore, the error in the trialjudge’s instruction could not be characterized as “minor”. Nor was the evidence against Mr.

White “so overwhelming that any otherverdict would have been impossible to obtain” (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34). Consequently, he would haveordered a new trial. III. Issues [16] In my view, this case raises three issues:

(1) How do the rules of evidence as they relate to admissibility, limiting instructions and cautions apply to post-offence conductevidence?

(2) Did the trial judge’s charge to the jury in this case satisfy the requirements of the rules of evidence as they apply to limitinginstructions and cautions?

(3) If not, is this an appropriate case in which to apply the curative proviso? I will deal with each issue in turn. IV. Analysis A. How Do the Rules of Evidence as They Relate to Admissibility, Limiting Instructions and Cautions Apply to Post-Offence ConductEvidence?

(1) The Applicable Precedents [17] It has long been accepted that actions taken by an accused person after a crime has been committed can, under certaincircumstances, provide circumstantial evidence of their culpability for that crime. Examples of such actions include flight, thedestruction of evidence, or the fabrication of lies. However, in recent years the terminology used to refer to such evidence has undergonecertain changes. [18] At one time, it was referred to as “consciousness of guilt” evidence. The value of such evidence was explained byWeiler J.A. in R. v.

Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (C.A.), at p. 629: Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which,based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocentperson. The term “consciousness of guilt” evidence was used to describe such conduct because it was used to support an inference that the personin question believed themselves to be guilty of the crime of which they were accused.

In some cases, certain aspects of a person’s after-the-fact conduct can best be explained by the theory that they are guilty of the crime of which they stand accused. For instance, if aperson admits committing

an act which resulted in death, evidence that the person hid the weapon or fled from the scene may (thoughnot must) support an inference that they were guilty of culpable (as opposed to non-culpable) homicide (Peavoy, at p. 630). Such “after-the-fact” conduct is therefore admissible as circumstantial evidence. [19] However, in White (1998), this Court abandoned the label “consciousness of guilt” when describing evidence ofafter-the-fact conduct because such a label was thought to be unduly narrow and somewhat misleading.

After-the-fact conduct may infact be put to a wide variety of uses and its utility is not confined to supporting an inference that the accused had a “guilty mind”. AsMajor J. noted for the Court, at para. 20: “Consciousness of guilt” is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not aspecial category of evidence in itself. Moreover, the words “consciousness of guilt” suggest a conclusion about the conduct in questionwhich undermines the presumption of innocence and may prejudice the accused in the eyes of the jury.

Major J. went on to suggest that this general category of evidence should be referred to by a more neutral term, such as “post-offenceconduct”. This label would avoid the twin pitfalls of confining the relevance of such conduct to questions concerning the accused’s stateof mind and of subverting the presumption of innocence. [20] As Ryan J.A. pointed out, this change in nomenclature may have created conceptual difficulties that did not existbefore.

The reason is that “consciousness of guilt” evidence refers to a relatively narrow category of actions, usually attempts to evadedetection or prosecution, that can support an inference of guilt when taken alone (C.A. reasons, at paras. 128-29). That is, evidence that a

person considers themselves guilty of a crime can support an inference of guilt of that crime. Jurisprudence has grown up around the sortof warnings and limiting instructions that ought to be given to juries with respect to this relatively narrow category of evidence. [21] The category of “post-offence conduct” evidence is much broader as it refers to anything done by the accused afterthe commission of the offence.

The shift in nomenclature may therefore have led some trial judges to believe that any evidence of theaccused’s actions after the offence must be subject to special warnings and limiting instructions (see C.A. reasons, at para. 129, per RyanJ.A.). This is not the case. [22] The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At itsheart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23).

As Major J. notedin White (1998), “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In somecases it may be highly incriminating, while in others it might play only a minor corroborative role” (para. 21). As with all otherevidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently,the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles asfor all other circumstantial evidence.

Thus, while the term “consciousness of guilt” may have fallen out of use, it is still permissible forthe prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who isguilty of the offence alleged — provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated. [23] That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has alsolong been recognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt”carries with it a substantial risk of jury error (Gudmondson v.

The King (1933), (SCC), 60 C.C.C. 332 (S.C.C.)).

Jurorsmay be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998), at para. 57) withoutgiving proper consideration to alternate explanations for the conduct in question. [24] In most cases, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanationsfor the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct untilall the evidence has been considered in the normal course of their deliberations.

Beyond such a cautionary instruction, the members ofjury should be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added; White (1998), atpara. 57.] [25] One instance in which the risk of jury error becomes especially acute arises when the accused has confessed toengaging in some form of criminal conduct related to the crime of which he stands accused.

In such cases, post-offence conduct thatsupports an inference that the accused had a “guilty conscience” may be of little or no use in determining his level of culpability. [26] Such a set of circumstances arose in Arcangioli. Mr. Arcangioli had been accused of stabbing someone in the courseof a large brawl, during which a number of individuals had combined to assault a single victim. Mr. Arcangioli had been seen fleeing thescene after the victim had been stabbed, and the prosecution sought to rely on this as circumstantial evidence of “consciousness ofguilt”.

The trial judge instructed the jury that such an inference was indeed available, and Mr. Arcangioli was convicted of the stabbing. His conviction was upheld by a majority in the Court of Appeal for Ontario. [27] However, on further appeal, this Court found that the jury charge was deficient and ordered a new trial. Theaccused had admitted to taking

part in the group attack and punching the victim several times, making him guilty of common assault. Furthermore, he claimed to have fled the scene in panic after seeing someone else stab the victim, panic which was brought on by hishaving already committed a crime. The Court found that, even if Mr. Arcangioli’s flight were evidence of “consciousness of guilt”, thatguilt was equally explained by either common assault or aggravated assault (i.e. the stabbing).

The evidence concerning his flighttherefore had no probative value in determining which offence he had committed, and the trial judge should have instructed the jury thatthis evidence could not support any inference concerning his level of culpability.

(2) Rules of Evidence as They Relate to Admissibility, Limiting Instructions and Cautions, and Their Application to Post-Offence Conduct Evidence [28] The issue in this case is whether the trial judge ought to have given the jury a limiting instruction to the effect thatevidence of Mr.

White’s post-offence conduct was not probative as between the mens rea for second degree murder and manslaughter.The purpose of a limiting instruction is to preclude the jury from considering certain evidence, either with respect to all the live issues ina case or with respect to one or more particular live issues. [29] Similarly, finding an item of evidence inadmissible serves to preclude the jury from considering that evidence at all,with respect to the entire case.

Issues of admissibility will arise over the course of the trial as evidence is tendered and evidence that isfound to be inadmissible is not allowed on the record. Conversely, a limiting instruction is provided in directions to the jury. For an itemof evidence to be subject to a limiting instruction, it must have been admitted in the first place. Still, it may be that an item of evidencethat was admissible at trial must be removed from the jury’s deliberations on some or all of the issues in the case.

A limiting instructionwill be necessary when, at the end of all the evidence and for the purposes of the charge to the jury, certain evidence that appearedunobjectionable when it was admitted should in fact be removed from the jury with respect to one or more of the issues in the case. [30] The goal of excluding evidence as inadmissible or providing a limiting instruction is essentially the same: to preventthe jury from considering the evidence, either with respect to the entire case (for admissibility) or with respect to one or more issues (fora limiting instruction).

Moreover, the same rules of evidence govern admissibility and the need for limiting instructions. [31] Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantialevidence”, the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by thesame principles of evidence that govern other circumstantial evidence.

In particular, to be admissible, such evidence must be relevant to alive issue and it must not be subject to a specific exclusionary rule (e.g. the hearsay rule); it may also be excluded pursuant to the

exercise of a recognized judicial discretion (D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 26), such as thediscretion to exclude evidence whose prejudicial effect outweighs its probative value. These same principles also determine the need forand scope of a limiting instruction. [32] I will next elaborate how these general principles of evidence apply when determining whether a limiting instructionis required in relation to post-offence conduct evidence. For clarity, I will discuss them under the following four headings: (

a) relevance,(

b) narrative (which is best understood as an attenuation of the rule of relevance), (

c) specific exclusionary rules and (

d) discretion. [33] Before I proceed, it is critical to bear in mind that removing evidence from the jury’s consideration is not the onlyway of dealing with evidence associated with a heightened risk of jury error. It is also possible, and often appropriate, for the trial judgeto warn the jury of the risks associated with certain types of evidence.

The purpose of such a caution is to alert the jury to the danger,which has been recognized through judicial experience, but then to allow the properly informed jurors to evaluate the evidence with care. [34] The terms “limiting instruction” and “caution” (or “warning”) are not narrowly defined terms of art which courtshave consistently treated as distinct.

Nevertheless, there is a distinction between the following two types of jury instruction: one thattells the jury they must not consider the evidence for one or several purposes, and the other that leaves evidence for the jury to consider,but warns them to be careful with it. For ease of reference, I will refer to the first type of instruction as a limiting instruction and to thesecond type as a warning or caution. [35] This distinction matters because, in the present case, the judge did warn the jury to be careful with the evidencerelating to Mr.

White‘s flight and that there may be one or more explanations for his conduct. What Mr. White argued here is that,beyond providing a warning, the judge ought to have told the jury that it was not allowed to consider evidence of his immediate flight indeciding as between a finding of second degree murder or manslaughter. Accordingly, after discussing the principles governing limitinginstructions, I will address (

e) how a caution can alleviate the risks associated with certain evidence that ought to be left with the jury. (

a) Relevance [36] Mr. White submits that the trial judge erred in not having given a limiting instruction that his post-offence conductwas of “no probative value” to the level of his culpability as between murder and manslaughter. At its heart, the requirement for a “noprobative value” instruction is a question of relevance: if an item of evidence is not relevant to a live issue, then that item of evidenceshould be removed from consideration by the jury (White (1998), at para. 26, explaining Arcangioli).

I agree with Binnie J. thatirrelevant evidence should be excluded or, if it is already on record, subject to a “no probative value” instruction (para. 169). In order forevidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make theproposition for which it is advanced more likely than that proposition would be in the absence of that evidence” (Paciocco and Stuesser,at p. 31, approved in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, and R. v. B. (L.) (1997), (ON CA),35 O.R. (3d) 35, at p. 44 (C.A.); see also Morris v.

The Queen, (SCC), [1983] 2 S.C.R. 190, at pp. 199-201, per Lamer J.(as he then was; speaking in dissent on the issue of relevance)). [37] Arcangioli, and its successor case White (1998), stand for the proposition that a “no probative value” instruction willbe required when the accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences (White(1998), at para. 28; Arcangioli, at pp. 145 and 147).

This proposition neither complicates nor goes beyond the basic rule of relevance: tosay 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 “equallyconsistent with” either determination of a live issue are three ways of saying the same thing. [38] As with all other evidence, the relevance or probative value of post-offence conduct “will depend on the facts ofeach case” (White (1998), at para. 26).

I agree with Binnie J. that there is no general rule applying to post-offence conduct: relevancemust be assessed on a case-by-case basis. [39] In some cases, an item of evidence may be probative of one live issue, but not of another. For example, flight per semay be relevant in determining the identity of the assailant, but may not be relevant in determining the accused’s level of culpability asbetween murder and manslaughter.

In such a case, the rules of evidence remain unchanged: the evidence is left with the jury, for it toweigh with respect to the issue of identity; the jury is precluded from considering the same evidence with respect to determining themens rea for murder as opposed to manslaughter, by way of a limiting instruction to the effect that this evidence is not probative of thisparticular live issue.

That judges must sometimes give limiting instructions as to appropriate and inappropriate inferences to be drawnfrom the evidence is merely an application of the rule of relevance tailored to different live issues in a single case. [40] Mr. White sought to have this Court accept that Arcangioli and its successor cases, such as White (1998), stand forthe very broad proposition that “post-offence conduct is generally inadmissible in determining whether an accused is guilty ofmanslaughter or murder” (A.F., at para. 46). Arcangioli did not have — nor was it intended to have — so far-reaching an effect.

According to Arcangioli and White (1998), the inquiry is fact-specific and a “no probative value” instruction is warranted when theevidence of post-offence conduct is “equally consistent with” or “equally explained by” either determination of the live issue in question(here, with a finding of murder or manslaughter); that is, when the evidence is not probative of that live issue, on the facts of the case. [41] It may sometimes be the case that, when the accused has admitted the actus reus, much of the accused’s post-offence conduct will be irrelevant to determining the level of culpability.

Indeed, according to Major J., in White (1998), a “no probativevalue” instruction is “most likely to be warranted” in precisely these circumstances (para. 28 (emphasis added)). However, this was notmeant to be a free-standing principle governing admissibility or limiting instructions.

Arcangioli and White (1998) make it clear that thebasic test is always relevance in the ordinary sense: . . . where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences,and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that suchevidence has no probative value with respect to any particular offence. [Emphasis added; Arcangioli, at p. 145.]

. . . a jury should not be permitted to consider evidence of post-offence conduct when the accused has admitted culpabilityfor another offence and the evidence cannot logically support an inference of guilt with respect to one crime rather than the other. [Emphasis added; White (1998), at para. 23.] [42] Thus, Arcangioli and White (1998) should be understood as a restatement, tailored to specific circumstances, of theestablished rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise.

Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level ofculpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conductsupport an inference regarding his level of culpability. [43] Binnie J. takes issue with my view that the general principles that apply to all circumstantial evidence should applyin this case (paras. 178-80).

In his view, “it is not enough simply to evaluate whether evidence as to the appellant’s ‘no hesitation here,no shock, no uncertainty on his part’ might be relevant to the issue of murderous intent merely ‘as a matter of logic and humanexperience’” (para. 180). Binnie J. invokes the importance of “having regard to the practical lessons that have accumulated in the courtsover many years with respect to the potentially misleading nature of certain types of post-offence conduct” (ibid.).

He identifies thecategory of “post-offence demeanour” (ibid.) evidence as one type of evidence that should be treated with particular care. [44] With respect, I do not agree with two aspects of Binnie J.’s approach. First, when the question is “should theevidence be removed from the jury because it is irrelevant?”, it is enough to evaluate whether the item of evidence is relevant to thematerial fact at issue as a matter of logic and human experience.

Of course, judges should avail themselves of the accumulatedknowledge from courts and studies to the effect that certain types of evidence can appear probative when they are not. This knowledgecan inform a determination that a particular item of evidence is too equivocal to meet the test of relevance.

This is still the same test ofwhether a particular item of evidence tends to make a material fact in issue more or less likely, just with more information based uponjudicial experience. [45] However, in his discussion of relevance, Binnie J. refers to these practical lessons of the courts with respect to the“potentially misleading nature of certain types of post-offence conduct” (para. 180 (emphasis added)). He also refers to the KaufmanReport, which says that “evidence of the accused’s ‘demeanour’ . . . can be overused and misused” (para. 182 (emphasis added)).

I donot agree that the risk that a jury will misuse or be misled by an item of evidence, should inform the relevance determination. Instead,this risk is appropriately addressed through the trial judge’s discretion to exclude evidence whose prejudicial effect outweighs itsprobative value or through a caution in the jury charge to be careful with the evidence. I discuss both below. [46] Second, I do not agree that this case raises the sorts of concerns typically associated with demeanour evidence.

Thiscase simply does not engage concerns about evidence of facial expressions or failing to attend funerals leading to wrongful convictions.The Crown did not invite the jury to rely on Mr. White’s appearance in relation to shock or surprise, but on the fact that he did nothesitate before fleeing. As I elaborate below, the objective physical evidence that Mr. White failed to hesitate immediately after shootingMr. Matasi has nothing to do with the serious problems identified by the Kaufman Inquiry into the Morin conviction or the Nelles case(R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97 (Ont. Prov. Ct. (Crim.

Div.))). (

b) Narrative [47] The basic requirement of relevance is somewhat attenuated in the context of narrative evidence. Evidence that is notadduced to prove a live issue, or support the prosecution’s case, but that is merely provided to complete the narrative may be admittedeven if it does not satisfy the strict requirements of relevance (Paciocco and Stuesser, at pp. 45-47).

A trial judge need not providespecific limiting instructions with respect to each item of evidence that was merely presented to complete the narrative to the effect that itis “not probative” of the live issues in the case. [48] I should make clear that I am only here adverting to the attenuation of the requirement of relevance as it pertains tonarrative evidence and not to the relationship between narrative evidence and other specific exclusionary rules (e.g. the hearsay rule). (

c) Specific Exclusionary Rules [49] Although not at issue in the present appeal, specific exclusionary rules can also operate to remove certain types ofotherwise relevant evidence from consideration by the jury. Binnie J.’s discussion of the inadmissibility of evidence for “legal reasons”(para. 168) falls under this category. (

d) Discretion to Exclude [50] Otherwise admissible evidence may still be removed from consideration by the jury on the basis that it is moreprejudicial than probative. This may be achieved by refusing to admit the evidence at trial. It can also happen that the disproportionatelyprejudicial nature of a certain item of evidence only becomes apparent in light of the evidence as a whole.

The trial judge may theninstruct the jury in his charge that they may not consider a certain item of evidence in their deliberations. [51] Exclusion on the basis that evidence is more prejudicial than probative does not ground a “no probative value”instruction: the evidence is by hypothesis at least minimally probative of a live issue.

As noted in White (1998), the decision inArcangioli did not rest on the exercise of this discretion: It bears emphasizing that in these sorts of cases, while the evidence cannot be said to be irrelevant to the issue indispute, it might still be withdrawn from the jury by the trial judge on the basis that it is more prejudicial than probative. The samewould be true in cases where two separate offences have been committed and the evidence of post-offence conduct provides scant basisfor distinguishing between them.

Such a decision would fall within the ordinary discretion of the trial judge, however, and would not bemandated by the result in Arcangioli. [para. 33]

Although the issue was not raised in the present appeal, there is a distinction to be made between removing post-offence conduct fromconsideration by the jury because it is not probative of a live issue and excluding it because its probative value is outweighed by itsprejudicial effect.

Some of the concerns about juries misusing evidence of post-offence conduct and “demeanour evidence” may bebetter addressed by the application of this discretion. [52] As I explained above, these concerns, do not justify applying a different test of relevance to post-offence conduct or“demeanour evidence” than that applied to any other circumstantial evidence. The trial judge’s discretion to exclude evidence that ismore prejudicial than probative recognizes that jurors will sometimes misuse relevant evidence.

However, since this discretion calls intoquestion the jury’s competence in performing its fact-finding function, the excessive prejudicial effect should be invoked explicitly. Itshould not be disguised within a finding that the evidence is not probative at all. Where this discretion is not invoked, the jury should betrusted, often with a warning, to weigh the relevant evidence. [53] Although Binnie J. takes the position that evidence of Mr.

White’s lack of hesitation prior to flight ought to havebeen removed from the jury as irrelevant, he would, in the alternative, have held that the trial judge ought to have exercised his discretionto exclude the evidence as more prejudicial than probative (para. 176). I do not agree. I would observe that the trial judge was not askedto exercise this discretion at any point in the proceedings in this case, nor was it ever suggested to the Court of Appeal or to this Courtthat he ought to have.

In any event, as I discuss below, the evidence was probative and, based upon the record, I see no basis fordetermining it would have had a disproportionately prejudicial effect. (

e) How a Caution Can Alleviate the Risks Associated With Certain Evidence That Ought to Be Left With the Jury [54] Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight togive a particular item of evidence. Similarly, once evidence is determined to be relevant with respect to a particular live issue, the juryshould normally be free to weigh the evidence in drawing conclusions about that live issue.

This is subject to specific exclusionary rulesand the judge’s discretion to exclude evidence that is more prejudicial than probative. [55] Still, judicial experience has shown that certain evidence that ought to be left with the jury, based on the ordinaryrules of evidence, carries with it a heightened risk of misinterpretation or misuse. Certain types of evidence may appear more probativethan they really are, may be systematically less reliable than they seem, or may be consistent with other less obvious explanations thanthe one advanced by a party (though not equally so).

These potential dangers may not be immediately apparent to lay juries (see R. v.Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 4). Accordingly, courts have recognized that when leaving certain types of evidencewith the jury, the trial judge should provide a caution that alerts the jury to the risks involved. The content and nature of the warningshould address the risk and depend upon the severity of the danger. [56] A warning or caution does not serve to remove the evidence from the jury’s consideration.

Instead, providing acaution allows for juries to benefit from judicial experience concerning the risks associated with certain types of evidence, whilerespecting the jury’s competence in fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are notnecessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on theconviction that jurors are intelligent and reasonable fact-finders.

It is contrary to this fundamental premise to assume that properlyinstructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence. I agreewith the view expressed by Dickson C.J., in R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, that “it would be quite wrong tomake too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously underminethe entire jury system.

The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinarycitizens who are not legal specialists and who bring to the legal process a healthy measure of common sense” (p. 692 (emphasis inoriginal)). [57] Binnie J. does not draw any clear distinction in his reasons between removing evidence from consideration by thejury and warning the jury to be careful with certain evidence.

Indeed, in discussing “the need for a limiting instruction” (para. 178), heinvokes judges’ instructions about evidence of jailhouse informants and eyewitness identification (para. 185). Yet, these two types ofevidence are not systematically removed from the jury’s consideration by way of a limiting instruction, but are generally left with thejury along with a warning in the jury charge. [58] When leaving the jury with evidence of a jailhouse informant, the trial judge is to provide a Vetrovec warning.

Theinstruction “must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on theunsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, inappropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses”(Khela, at para. 47, per Fish J., cited in R. v.

Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at para. 11). [59] Eyewitness identification evidence provides an even more striking example of the importance of distinguishing alimiting instruction that removes evidence from the jury’s consideration from a warning that tells the jury to be careful with the evidence.In the vast majority of cases, eyewitness identification will be relevant to the issue of identity, i.e. whether the accused is the person whocommitted the offence. However, eyewitness identification can be “deceptively credible” because an honest and sincere witness may bemistaken (R. v.

Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 50-51, specifically referring to “eyewitness in-court identification”,but also discussing eyewitness identification generally; see also R. v. Curran (2004), (ON CA), 188 O.A.C. 1, atpara. 29). The appropriate response is not to instruct the jury that they cannot consider eyewitness testimony in determining the issue ofidentity. Rather, it is to warn the jury that the evidence may not be as reliable as it seems.

Indeed, this is what judges generally do. [60] In sum, it is important to remember that, when dealing with risky evidence, the trial judge is not left with a starkchoice between removing the evidence from the jury’s consideration with respect to one or more live issues, and simply leaving theevidence with the jury without any guidance. It is also possible for the judge to warn the jury of the risks and thereby assist them inperforming their fact-finding function.

In my view, a limiting instruction is only appropriate when the evidence is not relevant to one ormore live issues, is subject to a specific exclusionary rule or is explicitly found by the trial judge to be more prejudicial than probative.Otherwise, judicial experience about the risks associated with certain types of evidence should be communicated to the jury by way of a

caution. B. Did the Trial Judge’s Charge to the Jury in This Case Satisfy the Requirements of the Rules of Evidence as They Apply to Limiting Instructions and Cautions?

(1) The Trial Judge Should Not Have Given a Limiting Instruction [ 61 ] In this case, the trial judge provided a caution. It was not argued that the warning was inadequate to alert the jury to the possibility that there might be other explanations for Mr. White’s lack of hesitation prior to flight. Similarly, it was not argued that the trial judge ought to have exercised his discretion to exclude the evidence or to have excluded the evidence based upon a specific exclusionary rule. None of these issues were before this Court.

The only issue that was raised before this Court was whether the trial judge should have provided a limiting instruction that Mr. White’s lack of hesitation prior to flight was not probative as between murder and manslaughter; in other words, that it was irrelevant. (

a) The Issue Was of Little Significance at Trial [ 62 ] The issue in this appeal is whether the evidence of Mr. White’s lack of hesitation prior to flight was relevant in determining his level of culpability as between murder and manslaughter. At the outset, I should state that this issue was of little significance at trial.

As Charron J.’s detailed review of the record shows (paras. 111-21), this issue was not a significant element in the Crown’s case. [ 63 ] Without repeating what Charron J. has said, I stress that three features of the record are particularly telling as to the minimal significance, at trial, of evidence of lack of hesitation prior to flight in relation to the issue of intent. First, throughout the Crown’s case, the identity of the shooter was a very live issue. Evidence of flight was of central importance to the Crown’s case on the issue of identity.

Second, in making its case on intent, the Crown emphasized forensic evidence and eyewitness testimony. Mr. White’s lack of hesitation prior to flight was a very minor part of the Crown’s case on intent. Third, defence counsel did not respond to the Crown’s submissions about the evidence of lack of hesitation prior to flight in his closing argument nor did he raise any concerns about the use of this evidence with the trial judge. (

b) The Relevance of Lack of Hesitation Prior to Flight [ 64 ] Having noted the context in which the issue arose at trial, I now consider whether lack of hesitation prior to flight was relevant to determining Mr. White’s level of culpability as between murder and manslaughter. [ 65 ] The Crown sought to convince the jury that Mr. White’s conduct in the immediate aftermath of the gunshot was not reconcilable with the theory that the gun was fired accidentally. In Mr.

White’s view, this submission “breached the well-established rule that post-offence conduct, such as flight, is not admissible to determine an accused’s level of culpability” (A.F., at para. 58). Relying on Arcangioli , and its successor cases, he argues that the Crown invited the jury to draw an impermissible inference of “consciousness of guilt” of second degree murder from his “immediate flight”. [ 66 ] However, this case is distinguished from Arcangioli on the facts. The conduct alluded to by the Crown is not the flight itself , but rather Mr. White’s failure to hesitate after his gun was fired into Mr.

Matasi’s chest before he fled the scene . This is different from the question at issue in Arcangioli , which concerned the simple act of fleeing from the scene. In that case — as, indeed, in this one — the mere fact that the accused fled the scene did not provide any information as to whether he was guilty of the lesser or the greater charge. However, in this case, the fact that Mr.

White failed to hesitate at the discharge of his firearm into another person’s chest does potentially provide such information. [ 67 ] A s a matter of logic and human experience, one would expect an ordinary person to present some physical manifestation , such as hesitation, at a gun in their hand accidentally discharging into someone’s chest, thereby killing them. It was open to the jury to infer that a failure to react in this way was incongruous with the theory, advanced by the defence, that the gun went off by accident as the two men struggled with each other.

To use the language of Arcangioli and White (1998) , lack of hesitation was not “equally consistent with” or “equally explained by” accidentally as opposed to intentionally shooting the victim. It is less consistent with accident. Thus, the evidence that Mr. White did not hesitate when the gun was fired in response to this unexpected and calamitous turn of events supports an inference that he deliberately pulled the trigger. [ 68 ] Again, this case is not simply a replay of Arcangioli .

In my view, there is a meaningful difference between the following two questions: Would the accused have been equally likely to flee the scene whether he was guilty of murder or of manslaughter? ( in Arcangioli ) Would the accused have been equally likely to hesitate before fleeing had he shot the victim intentionally or accidentally? (in this case) [ 69 ] The two questions raise distinct sets of considerations.

On the one hand, logic and human experience suggest that there is no reason to think that a person who has committed manslaughter would be more likely to stay at the scene of the crime than one who has committed murder. In both cases the person has committed a very serious offence by unlawfully killing someone and will be just as likely to flee. In both cases, the person may flee for a host of reasons, such as to avoid arrest, to minimize evidence of that person’s connection with the crime, or to buy additional time. Indeed, flight is a response equally consistent with a wide range of much less

serious offences, such as theft, vandalism, or common assault (as discussed in Arcangioli). [70] On the other hand, logic and human experience suggest that people are more likely to show some outward sign, suchas hesitation, before continuing on with their actions, when they do something accidentally than when they do it on purpose. This is allthe more so when the accident involves a sharp physical effect on the person (the discharge of a gun in one’s hand) and results in aterrible consequence, such as having killed another person.

As I have discussed, lack of hesitation prior to flight, is less consistent withshooting and killing someone accidentally than it is with doing so intentionally. Thus, in the context of determining relevance, evidenceof flight per se is different from evidence of lack of hesitation prior to flight. [71] In R. v.

Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, LeBel J., in his reasons for the majority, addressed an issue similarto the one being discussed here, albeit in obiter. [72] In that case, a man was accused of shooting and killing a police officer who had entered his home in order to dealwith a domestic dispute between the accused and his wife. The accused claimed that the shooting was accidental, and testified that hecould not remember the events leading up to the shooting because of the effects of the pepper spray used on him by the police officer.

Inorder to impugn the accused’s credibility, the Crown had referred to the fact that, moments after the shooting, the accused had reloadedhis gun and told his wife that he intended to commit suicide, all without bothering to verify if the officer was dead.

In the Crown’s view,these actions were inconsistent with the accused’s testimony that he had virtually no memory of the shooting itself, and so it sought toweaken the credibility of that testimony by drawing attention to the discrepancy. [73] Although the Crown only used evidence of his post-offence conduct to impugn the credibility of the accused, LeBelJ. believed that an argument could have been made that his conduct supported an inference concerning the state of mind of the accused atthe time of the shooting: Post-offence conduct may also be used to discredit a defence that relates to the accused person’s state of mind at thetime of the offence and that is therefore relevant to his or her ability to form the requisite intent for the offence, such as intoxication (R. v.Pharr, 2007 ONCA 551, 227 O.A.C. 112, at paras. 8-15; Peavoy, at pp. 630-31) or the “not criminally responsible” defence under s. 16(R. v.

Jacquard, (SCC), [1997] 1 S.C.R. 314, at paras. 42-53). In the case at bar, the Crown could have pursued theargument that the appellant’s sense of awareness immediately after the shooting was relevant circumstantial evidence that he had therequisite intent, since it belied his claim to have been completely disoriented by the pepper spray. If the Crown had done so, then thejury should have been instructed on the limited probative value of the appellant’s post-offence conduct. [Emphasis added; para. 40.] [74] In my view, the situation in the present case is no different. A jury could legitimately infer that Mr.

White’s lack ofhesitation after the gun was fired belied his claim that the shooting was accidental. Evidence of such a failure is thus relevant to thequestion of whether he had the requisite intent for second degree murder. [75] This evidence was not tainted by the hallmark flaws associated with “demeanour evidence” so as to be irrelevant. Such hallmark flaws are generally associated with evidence in the form of a witness’s impression of the accused’s mental or emotionalstate (e.g. appeared calm or nervous), as inferred by the witness from the accused’s outward appearance or behaviour.

The accused’smental or emotional state is then submitted as suspect and probative of guilt (see Nelles; R. v. Levert (2001), (ONCA), 150 O.A.C. 208, at paras. 24-27; R. v. Trotta (2004), (ON CA), 191 O.A.C. 322, at paras. 40-43 (an appeal wasallowed by this Court and a new trial was ordered, but solely on the basis of fresh evidence, 2007 SCC 49, [2007] 3 S.C.R. 453)). [76] A problem with such evidence is that the inferential link between the witness’s perception of the accused’sbehaviour and the accused’s mental state can be tenuous (Trotta, at para. 40).

The witness’s assessment depends on a subjectiveimpression and

interpretation of the accused’s behaviour (Levert, at para. 27). Moreover, it appears to involve an element of mindreading (R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29, at para. 51).

Additionally, insofar as the witness is inferring the accused’sstate of mind from the accused’s outward appearance, there may be a legitimate concern that this is inadmissible lay opinion evidence.This is to be contrasted with evidence of objective conduct that allows the jury to draw its own inferences about the accused’s state ofmind. [77] Lack of hesitation prior to flight is an objective fact, from which the finder of fact (and not the witness) is asked todraw an inference of no shock or surprise.

This was not a case where the accused’s outward behaviour was adduced to prove that anawareness of guilt was boiling under the surface.

The evidence here is not analogous to a doctor’s testimony that a nurse had “a verystrange expression” and displayed no signs of grief when she was “writing up the final death note as part of her other difficult duties onthe occasion of the death of a baby in her care” (Nelles, at p. 125, cited in Binnie J.’s reasons, at para. 142); nor is it analogous totestimony that the accused seemed “unusually quiet” in the area of a crime scene and turned his head away (Anderson, at para. 50, citedin Binnie J.’s reasons, at para. 143).

Instead, the evidence was in the nature of the absence of an immediate reflex. [78] Indeed, I agree with Charron J. that Crown counsel’s comment was certainly not “an invitation to infer a murderousintent from the way Mr. White ‘looked’ just before he fled” (para. 122). As her discussion of the record shows, “while every witness tothe event testified that the shooter immediately fled, no witness was asked by the Crown how the shooter ‘looked’ at the time he fled”(para. 122 (emphasis in original)).

Rather, if any examples of “demeanour evidence” were at issue in this case, it was counsel for thedefence who attempted to introduce them.

I further agree that, had defence counsel successfully shown that there was evidence that Mr.White did look surprised or shocked after the shooting, the jury would have been entitled to the benefit of this evidence (Charron J.’sreasons, at para. 126). [79] It is true that the Crown’s use of evidence of lack of hesitation prior to flight presupposes a normal range ofreactions: it assumes that most people will hesitate or show some other outward sign of surprise when something dramatic and horribleaccidentally happens. Of course, it may be that not everyone will respond in this way.

However, I consider this view of a normal almostreflexive or involuntary response to be well founded. I have no doubt that had there been evidence of hesitation, defence counsel wouldhave submitted it as probative of an accident. Divergence from this norm, though not determinative, is more consistent with anintentional shooting than with an accident. It would therefore have been wrong for the trial judge to instruct the jury that this evidence

had no probative value in determining intent, as Mr. White suggests he should have. It was not irrelevant.

(2) The Trial Judge’s Instructions to the Jury Did Not Invite the Jury to Consider Evidence of Flight per se inDetermining the Appellant’s Level of Culpability as Between Murder and Manslaughter [80] Mr. White submits that, even if the Crown’s argument concerning his lack of surprise was permissible, the trialjudge nonetheless erred in his instructions to the jury because he invited them to consider the flight itself as evidence that he intended toshoot Mr. Matasi. [81] The trial judge referred to post-offence conduct in relation to Mr. White’s flight from the scene on two occasions.

The first reference came in the context of his instructions to the jury on the issue of intent. Near the end of his instructions on that point,he stated the following: You may consider Mr. White’s post-event conduct in fleeing the scene, but you should also be careful with it. It maynot tell you much more than that for any number of reasons he would be in some kind of trouble if he stayed at the scene and it may notbe of much assistance in assessing his precise state of mind at the time the gun was fired. That is for you to assess and consider. [A.R.,at p. 606] He next referred to the manner of Mr.

White’s flight in summarizing the Crown’s theory of the case: The Crown submits that what is most compelling is the forensic evidence. It submits t

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