During a murder trial, the Crown sought to introduce evidence of alleged post‑offence sexual activity with the deceased and related internet searches to support an inference of planning and deliberation.
The court considered jurisprudence on the use of post‑offence conduct evidence and the risk of prejudice, including guidance from appellate authorities regarding jury misuse of such evidence.
Although the evidence was potentially relevant, the court found that it was highly inflammatory and not consistent only with the ultimate conclusion of guilt.
The probative value was outweighed by its prejudicial effect.
The Crown was therefore precluded from leading certain forensic evidence and from referencing the internet searches, subject to possible use in cross‑examination if the accused testified and put the timing of intercourse in issue.
