R. v. White, [1998] 2 S.C.R. 72

Richard Gerry White Appellant

v.

Her Majesty The Queen Respondent

and

Yves Rhéal Côté Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. White

File Nos.: 25775, 25854.

1998: March 26; 1998: July 9.

Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for ontario

Criminal law -- Evidence -- Post-offence conduct -- Charge to jury -- Accused charged with first degree murder -- Accused fleeing jurisdiction, running from police and attempting to dispose of murder weapon after victim was killed -- Whether trial judge should have instructed jury that post-offence conduct had no probative value -- Whether trial judge should have instructed jury to apply reasonable doubt standard to evidence of accused’s post-offence conduct.

The accused, W and C, were charged with first degree murder. The victim’s body was discovered near Ottawa. He had been shot twice with a shotgun and four times with a pistol. He had last been seen alive the previous evening in the company of the two accused. W and C left the Ottawa area soon after the murder. Two days later they robbed a bank in the Toronto area and one week later robbed the same bank again. During these robberies C fired a shotgun and a pistol, and left behind shells and cartridge cases that matched those found at the murder scene. The accused admitted the facts concerning both robberies, but denied any involvement in the murder. At trial, the Crown introduced the following evidence indicating that the departure of the accused from Ottawa following the murder constituted flight from the area: the fact that the accused remained away for more than ten days, missed parole meetings and failed to pick up a social assistance cheque; the fact that, according to an acquaintance who testified as a Crown witness, C called to inquire about “heat” in Ottawa and to instruct his landlord to pack up his belongings; W’s comments to the acquaintance that he needed a car and money to go away; and the commission of the two bank robberies. The Crown also introduced evidence showing that upon returning to Ottawa the accused fled from the police, and that they had police scanners in their car. In addition it led evidence of concealment, including the acquaintance’s testimony that the accused planned to get rid of the pistol, and the fact that W attempted to dispose of the pistol as he ran from the police in Ottawa. Defence counsel objected to the submission of this evidence to the jury on the ground that these actions could be explained by the parole violations and the bank robberies and therefore were not probative of whether the accused had killed the victim. The trial judge allowed the evidence to go to the jury, and gave them an instruction on how it should be dealt with. The jury returned verdicts of first degree murder against both accused. The Court of Appeal upheld the convictions.

Held: The appeals should be dismissed.

In certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. However, it may be proper to instruct a jury that such evidence has no probative value when, as a result of an admission by the accused, the evidence cannot logically support an inference of guilt with respect to the offence being tried rather than some other offence. 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. A “no probative value” instruction will thus be called for only in limited circumstances. Such an instruction is most likely to be warranted where the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such circumstances, it can be said that the post-offence conduct of the accused is “equally explained by” or “equally consistent with” two or more offences. By contrast, a “no probative value” instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. In this case the accused denied any involvement in the murder, and it was therefore their identities as the killers, and not their degree of guilt, which formed the issue in dispute at trial. Since the evidence of their post-offence conduct was relevant to the question of whether they had committed the murder, the trial judge was not required to instruct the jury that it had no probative value.

In cases where a “no probative value” instruction is not required and the post-offence conduct of an accused is put before the jury, the trial judge should nevertheless provide an instruction regarding the proper use of that evidence. In particular, the trial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried. The trial judge was not, however, required to direct the jury to apply the reasonable doubt standard to the evidence of the post-offence conduct, and would have been in error had he done so. The criminal standard of proof applies only to the jury’s final determination of guilt or innocence and is not to be applied to individual items or categories of evidence. Post-offence conduct, like any evidence, takes on its full significance and probative value only in the context of the other evidence in the case. Here, the trial judge properly instructed the jury that the acts of flight and concealment of the accused constituted evidence “which may be considered and weighed by you, as triers of fact, together with all the evidence in deciding the guilt or innocence of the accused”. He reminded the jury that flight or concealment does not necessarily imply guilt, but can arise from any number of innocent motives. He further instructed the jury that there might be “very valid reasons” for the conduct of the accused other than their guilt for the murder, and reviewed the alternative explanations put forth by the defence. The jury charge relating to the evidence of post-offence conduct was therefore adequate as given.

Cases Cited

Applied: R. v. Morin, [1988] 2 S.C.R. 345; distinguished: R. v. MacKenzie, [1993] 1 S.C.R. 212; not followed: R. v. Court (1995), 99 C.C.C. (3d) 237; R. v. Poirier (1995), 56 B.C.A.C. 131; referred to: R. v. Arcangioli, [1994] 1 S.C.R. 129; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Peavoy (1997), 117 C.C.C. (3d) 226; Gudmondson v. The King (1933), 60 C.C.C. 332; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74; R. v. Jacquard, [1997] 1 S.C.R. 314; United States v. Myers, 550 F.2d 1036 (1977); United States v. Boyle, 675 F.2d 430 (1982); United States v. Kalish, 690 F.2d 1144 (1982); R. v. Wiltse (1994), 19 O.R. (3d) 379; R. v. Burdick (1975), 27 C.C.C. (2d) 497; R. v. Cole (1980), 53 C.C.C. (2d) 269; R. v. Parrington (1985), 20 C.C.C. (3d) 184; R. v. Smith (1993), 31 B.C.A.C. 189; R. v. Richens, [1993] 4 All E.R. 877; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193; R. v. Bouvier (1984), 11 C.C.C. (3d) 257, aff’d [1985] 2 S.C.R. 485; R. v. Minhas (1986), 29 C.C.C. (3d) 193; Stewart v. The Queen, [1977] 2 S.C.R. 748; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. W. (D.), [1991] 1 S.C.R. 742.

APPEALS from a judgment of the Ontario Court of Appeal (1996), 108 C.C.C. (3d) 1, 29 O.R. (3d) 577, 91 O.A.C. 321, 49 C.R. (4th) 97, [1996] O.J. No. 2405 (QL), dismissing the appeals of the accused from their convictions of first degree murder. Appeals dismissed.

David E. Harris, for the appellant White.

John H. Hale, for the appellant Côté.

Kenneth R. Campbell and Susan L. Reid, for the respondent.

//Major J.//

The judgment of the Court was delivered by

1 Major J. -- The appellants, Richard Gerry White and Yves Rhéal Côté, were convicted of first degree murder in connection with the execution-style killing of Wei Kueng Chiu. Their appeals were dismissed by the Ontario Court of Appeal. The main issue in these appeals is whether the trial judge properly instructed the jury regarding the inferences to be drawn from the conduct of the appellants after the murder. In particular, the appeals concern evidence that the appellants fled from the jurisdiction in which the murder was committed, ran from the police to avoid arrest, and attempted to dispose of one of the murder weapons.

2 Two questions are before this Court. The first is whether, pursuant to the principles set out in R. v. Arcangioli, [1994] 1 S.C.R. 129, the trial judge should have instructed the jury that the appellants’ post-offence conduct had “no probative value” with respect to Chiu’s murder. The second question is whether the jury should have been instructed to draw no inferences from that evidence unless they were satisfied beyond a reasonable doubt that the appellants’ conduct was motivated by consciousness of guilt for having murdered Chiu, and not by some other cause.

I. The Facts

3 On the morning of August 27, 1989, the body of Wei Kueng Chiu was discovered at an isolated location near Ottawa. He had been shot twice in the upper body with a 12-gauge shotgun, and four times in the head with a .22 calibre pistol. Chiu had last been seen alive at about 8:00 p.m. the previous evening in the company of the appellants. The appellants were seen together later that night, but without Chiu. The three men were known to be friends, having served time together at Joyceville Penitentiary. All three had been released on parole earlier in the year.

A. The Appellants’ Departure from Ottawa

4 As stated, the central issue in these appeals concerns the behaviour of the appellants after Chiu was killed. The appellants remained in Ottawa on August 27 but did not return home that night and were not seen again in the area for nearly two weeks. It is not clear precisely when they left Ottawa, but on the morning of August 29 they robbed a bank in Mississauga, Ontario, about 500 kilometres away. One week later, on September 5, they robbed the same bank. During these robberies Côté fired a 12-gauge shotgun and a .22 calibre pistol, and left behind shells and cartridge cases that matched those found at the scene of Chiu’s murder. The appellants admitted the facts concerning both robberies.

5 From August 29 until September 7, the appellants stayed at two motels in Burlington, Ontario. During that time Côté missed a meeting with his parole officer in Ottawa, and White failed to respond to a letter regarding a similar meeting that he had missed earlier in the month. As a result of these parole violations, arrest warrants were issued for both appellants. White also failed to pick up a $400 social assistance cheque in Ottawa which he knew was available since August 30. On August 31, Côté called his landlord in Ottawa and asked him to gather his “things” and put them aside. Côté said that someone would pick them up because he would not be returning. When the landlord asked why, Côté replied: “the less you know, the better.”

B. Evidence of Paul Corner

6 Paul Corner testified for the Crown as an accomplice witness. On the stand, he admitted that he had a criminal record, including numerous offences of dishonesty. Corner testified that he was acquainted with the appellants from Joyceville Penitentiary, and that he met with them on August 29 in Burlington and registered them at a motel under his name that night. According to Corner, the following events unfolded in the appellants’ motel room. White and Côté unpacked their bags and removed a 12-gauge shotgun and a .22 calibre pistol. Côté then stated that he had “better see what it is like down in Ottawa” and placed a telephone call. At the end of the ensuing conversation, which Corner could not follow because it was in French, Côté turned to White and said: “everything is cool, there is no heat”. White then turned to Corner and explained that he and Côté had “snuffed somebody” in Ottawa, and more specifically that they had shot somebody to death with a shotgun and a pistol. When Corner expressed concern about his car, which he had lent to White earlier in the month, White assured him that “the car is fine, we didn’t -- there is no heat on [the] car”. Corner further testified that Côté was anxious to “get rid of the .22” and that White agreed to do so as soon as they could get another one. According to Corner, White also said that he and Côté were “going away” and needed money. Corner testified that he got the impression from the appellants that they were planning to go “west”.

C. Flight from the Police in Ottawa

7 White and Côté returned to Ottawa on September 7, 1989. The following morning the Ottawa police were tipped off, caught up with the appellants, and signalled for them to stop their car. The appellants accelerated and a short chase ensued. The appellants drove down a side street, slowed down, leapt from their car while it was still moving, and began running away. Some officers gave chase on foot. When one of the officers fired a shot in the air, Côté stopped and was arrested at gunpoint. White continued to flee, and threw a .22 calibre pistol under a parked car as he ran. He was arrested a short time later.

8 In the appellants’ car, the police found a 12-gauge shotgun, ammunition for the shotgun and for a .22 calibre pistol, radio scanners, and lists of police frequencies. Forensic tests revealed that the shotgun was the same weapon that had been used in Chiu’s murder and during the bank robberies. The pistol discarded by White was recovered and was also determined to have been used in the murder and the robberies. The Crown introduced evidence establishing that both the shotgun and the pistol had been in the appellants’ possession before Chiu was killed.

II. Judicial History

A. Supreme Court of Ontario

9 At trial, the Crown introduced the appellants’ departure from Ottawa, their comments to Corner, their flight from the police and White’s attempt to dispose of the pistol as evidence that the appellants were conscious of their own guilt for Chiu’s murder and were attempting to escape prosecution for that crime. Defence counsel objected to the submission of this evidence to the jury on the ground that the appellants’ actions could be explained by the parole violations and the bank robberies and therefore were not probative of whether the appellants had killed Chiu.

10 The trial judge allowed the evidence to go to the jury, and gave the following instruction:

I want to deal briefly with the evidence of flight and concealment. And I want to, before I deal with that, I will tell you what the rule is as to [how] you should look at this evidence. What the law says is that flight or concealment of the accused after a crime is committed does not mean that the accused is guilty of the crime. It is common knowledge that people who are entirely innocent sometimes fly from the scene of a crime to avoid apprehension as guilty parties or because they don’t want to get involved as witnesses. But flight is a circumstance which may be considered and weighed by you, as triers of fact, together with all the evidence in deciding the guilt or innocence of the accused. In the circumstance of this case where the evidence of flight is uncontradicted, you may infer that evidence of flight or concealment shows a consciousness of guilt. You have first to decide whether the evidence is evidence of flight or concealment, before you may draw that inference of consciousness of guilt.

Now [defence counsel] in their closing submissions told you that there were very valid reasons why the accused were fleeing. They were both parole violators and I suppose that is why they went to Hamilton and to Burlington. After the robberies in Burlington they came back to Ottawa. They wanted to get away from the scene of the robberies. And they both pointed out that in any case they started out in Ottawa and they returned to Ottawa so there is no flight. These are areas of the evidence on the issue of flight that you might want to consider and decide whether to draw an inference of consciousness of guilt or guilt itself.

The trial judge did not discuss the standard of proof that the jury should apply when considering the evidence of flight and concealment. The jury returned verdicts of first degree murder against both appellants.

B. Ontario Court of Appeal (1996), [108 C.C.C. (3d) 1](https://www.canlii.org/en/on/onca/doc/1996/1996canlii3013/1996canlii3013.html)

11 On appeal of their convictions, the appellants raised numerous arguments attacking the trial judge’s jury instructions. The appeals were dismissed in a per curiam decision by a five-judge panel of the Ontario Court of Appeal. Because the reasons of the Court of Appeal dealt with many of the issues raised in these appeals, they bear examination here.

12 With respect to consciousness of guilt, the appellants’ arguments before the Court of Appeal were essentially the same as those made to this Court. Relying on Arcangioli, the appellants contended that their conduct after the murder was fully explained by the parole violations and the bank robberies, and therefore had no probative value with respect to whether they had also killed Chiu. They argued that the trial judge erred by failing to instruct the jury to disregard that evidence. The Court of Appeal disagreed. It stated at pp. 16-17:

This case is different from Arcangioli. In Arcangioli the accused admitted an assault and the issue at trial was his level of culpability. On that issue the evidence of consciousness of guilt -- the accused’s flight from the scene -- had no probative value. The evidence of flight was not reasonably capable of supporting the inference that the accused had committed aggravated assault as opposed to common assault. In this case the consciousness of guilt evidence was not led to help the jury determine the appellants’ level of culpability -- first or second degree murder -- for an admitted killing. The evidence was led to help the jury determine whether the appellants were guilty of a killing that they denied having committed. The evidence could have probative value on that issue because it could reasonably support the inference that the appellants’ conduct related to their culpability for killing Chiu rather than to their culpability for the bank robberies or parole violations.

After reviewing the conduct at issue in this case, the court concluded that the evidence was not equally consistent with the alternative explanation advanced by the appellants. The court noted that it was the role of the jury, not the judge, to weigh the evidence and to determine whether in fact it pertained to the murder rather than to some other criminal activity. Accordingly, the court held that the trial judge was not required to instruct the jury that the evidence had no probative value.

13 The court next considered the argument that the trial judge had erred by failing to instruct the jury to apply a separate standard of proof to the evidence relating to consciousness of guilt. Relying on R. v. Court (1995), 99 C.C.C. (3d) 237 (Ont. C.A.), the appellants argued that the jury should have been directed to examine the evidence of post-offence conduct separately from the rest of the evidence, and to determine beyond a reasonable doubt whether that conduct reflected a consciousness of guilt on the part of the appellants for the murder of Chiu; if such a link could not be established, the jury should have been told that they could draw no inference of guilt from the appellants’ conduct.

14 The court rejected that approach. It emphasized that the jury’s determination of guilt or innocence must be based on all of the evidence, and that the criminal standard cannot be applied to selected items or categories of evidence separately without violating the principles laid down by this Court in R. v. Morin, [1988] 2 S.C.R. 345. As the court explained at p. 26:

. . . evidence tending to show consciousness of guilt can properly be treated as supportive of other evidence of guilt and should not be excluded from consideration because, on its own, it may not satisfy the standard of proof beyond a reasonable doubt.

. . . as with other evidence, the instructions should not encourage isolation, lest evidence which fails to meet the reasonable doubt standard, but is otherwise probative, be set aside in a piecemeal analysis.

The Ontario Court of Appeal acknowledged that it was overruling its own decision in Court and was disagreeing with the judgment of the British Columbia Court of Appeal in R. v. Poirier (1995), 56 B.C.A.C. 131, but it held that those decisions could not be reconciled with Morin. The court stressed the similarities between evidence relating to consciousness of guilt and other forms of circumstantial evidence, and noted that segregating one type of evidence for special treatment would make jury instructions more complex and confusing. It concluded that the trial judge did not err by failing to apply the principles of Court in the jury charge.

15 The court then disposed of the remaining grounds in the appeals. First, it rejected the appellants’ claim that the jury charge was insufficient with regard to the law of aiding and abetting, and noted at pp. 30-31 that “[o]nce the jury were satisfied that both accused persons were at the scene of the crime, there was no room to argue for a lesser or greater involvement between them.” The court also rejected the claim that the jury charge was insufficient with regard to the lack of evidence of motive. The court found that the charge on that matter was in fact more favourable to the appellants than the evidence merited.

16 The court next addressed the argument that the trial judge had failed to provide an adequate warning, pursuant to Vetrovec v. The Queen, [1982] 1 S.C.R. 811, about the reliability of Paul Corner’s testimony. In particular, the appellants asserted that the jury should have been told to rely on Corner’s testimony only to the extent it was supported by independent evidence. The court rejected that argument, and held that the charge as given made it sufficiently clear to the jury that they should regard Corner’s evidence with great caution. The court also dismissed the appellants’ argument that the trial judge had erred by equating “planning and deliberation” with “intention” and by referring to irrelevant evidence while instructing the jury on those concepts. The court agreed that the charge in this area lacked focus, but concluded that the instructions as a whole clarified the distinction between deliberation and intention and did not give rise to any reversible error.

17 The appellants’ remaining arguments concerned the jury charge on reasonable doubt, the use of evidence of prior convictions, and the overall reasonableness of the jury’s verdict. The Court of Appeal dismissed those arguments in summary fashion.

III. Issues

18 Our consideration of these appeals is limited to the two issues involving post-offence conduct and consciousness of guilt:

(1) Did the Court of Appeal err in finding that the trial judge was not required to give a “no probative value” instruction pursuant to Arcangioli?

(2) Did the Court of Appeal err in finding that a separate standard of proof does not apply to the jury’s consideration of evidence relating to consciousness of guilt?

IV. Analysis

A. Post-Offence Conduct and Consciousness of Guilt

19 Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238:

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 innocent person.

20 Evidence of this kind is often called “consciousness of guilt evidence”, since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. “Consciousness of guilt” is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words “consciousness of guilt” suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury. As has been suggested by the Ontario Court of Appeal, to the extent a general description is necessary, the use of more neutral language such as “evidence of post-offence conduct” or “evidence of after-the-fact conduct” is preferable: Peavoy, supra, at p. 238. Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand -- the act of flight, the false statement, as the case may be -- and on the relevance of those items to the ultimate issue of guilt or innocence.

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.

22 It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.

23 Two legal doctrines have arisen in response to these concerns. As a preliminary matter, this Court held in Arcangioli that a jury should not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence and the evidence cannot logically support an inference of guilt with respect to one crime rather than the other. That rule is essentially a matter of relevance and will usually apply in narrow circumstances. More generally, this Court has also held that when evidence of post-offence conduct is put to the jury, the jury should be “properly instructed” to ensure that the evidence is not misused: Arcangioli, at p. 143; Gudmondson v. The King (1933), 60 C.C.C. 332 (S.C.C.), at pp. 332-33. The content of such an instruction, particularly the appropriate standard of proof, has been the subject of ongoing controversy in the Courts of Appeal and is addressed below.

B. When Does Evidence of Post-Offence Conduct Have No Probative Value?

24 In Arcangioli, this Court considered the risks associated with the use of evidence going to consciousness of guilt. The facts were straightforward: the accused was charged with aggravated assault in connection with a stabbing that occurred during a fight outside a bar. The fight involved several people, all of whom fled the scene when it became apparent that the victim had been stabbed. At trial, the accused admitted punching the victim, but denied any involvement in the stabbing; he testified that he fled after he saw another person stab the victim in the back. The trial judge instructed the jury that the accused’s flight was a factor they could consider in reaching their verdict but that the evidence was not conclusive, as innocent people sometimes flee. On appeal to this Court, the jury instruction was held to be insufficient. The Court noted at p. 147:

By his own admission, the appellant was not entirely innocent; he admitted that he had punched [the victim]. The trial judge should have instructed the jury that the appellant’s flight was equally consistent with common assault and with aggravated assault, and therefore was incapable of supporting an inference of consciousness of guilt with respect to the latter. Because she did not charge the jury in those terms, there is a danger that the jury may have wrongly inferred from the evidence that the appellant fled because of his guilt in stabbing [the victim].

As a general proposition, it was held at p. 145 that:

[W]here 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 such evidence has no probative value with respect to any particular offence.

25 In this case, which predates Arcangioli, the trial judge did not give a “no probative value” instruction with regard to the appellants’ post-offence conduct. The appellants contend that this was error. They argue that their acts of flight and concealment could not be probative of consciousness of guilt with respect to Chiu’s murder, because those acts were “equally explained” by reference to the parole violations and bank robberies which they admitted committing. The issue before this Court is to what extent Arcangioli governs this case.

Application of Arcangioli

26 Arcangioli stands for the proposition that a piece of evidence should not be put to the jury unless it is relevant to the determination of a live issue in the case. The conduct of the accused in Arcangioli -- running from the scene of the crime -- was withdrawn from the jury because it could not reasonably assist them in deciding the specific issue before them. As this Court noted at p. 146:

[T]he issue was whether the appellant’s flight indicated a consciousness of guilt arising from the fact that he had stabbed [the victim] or rather from the fact that he had punched [him]. And on that question, the evidence could have no probative value. [Emphasis added.]

Whether a jury should be permitted to consider evidence of post-offence conduct will depend on the facts of each case. The question that should be asked at the outset is: What does the Crown seek to prove by means of the evidence? An admission by the accused may have the effect of narrowing the issue in dispute considerably, as was the case in Arcangioli. If, as a result of such an admission, the accused’s conduct can no longer be attributed to the offence being tried rather than some other offence, then the jury should be so instructed. The evidence of post-offence conduct may still be used by the jury for other purposes where appropriate, for example to connect the accused to the scene of the crime or to a piece of physical evidence, or to undermine the credibility of the accused generally.

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.

28 Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation. In R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74 (Ont. C.A.), this Court adopted the dissenting reasons of Dubin C.J.O., who held at p. 81 of the judgment below:

If, at the trial, the appellant had persisted in his earlier denial of non-involvement in the killing of the deceased, the jury would have been entitled -- from the evidence of the appellant’s flight from the scene, the appellant’s false statements, and the destruction of evidence -- to draw an inference of consciousness of guilt from which a further inference of culpability in the crime could also have been drawn. Once the appellant had admitted at trial that he had caused the death of the deceased, however, such evidence had very limited application. It had no application in determining whether the offence committed by the appellant was either murder or manslaughter.

See also R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 342-44. Under such circumstances, it can be said that the post-offence conduct of the accused is “equally explained by” or “equally consistent with” two or more offences.

29 By contrast, a “no probative value” instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. In such cases it is the identity of the accused as the perpetrator, rather than the extent of his or her culpability, that is in issue, and it will almost invariably fall to the jury to decide whether the evidence of post-offence conduct can be attributed to one culpable act rather than another.

30 In United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), it was held that the flight of an accused from law enforcement officers could not reasonably support an inference of consciousness of guilt with respect to a bank robbery, because the accused had confessed to committing a more recent robbery in another state. The reasoning in Myers provided helpful guidance to this Court in Arcangioli, but its result was not determinative. Subsequent American decisions have confined Myers to its facts, and have confirmed that so long as evidence of after-the-fact conduct is relevant to an issue in dispute, the attribution of that conduct to one offence rather than another is normally a question of fact for the jury. See United States v. Boyle, 675 F.2d 430 (1st Cir. 1982), at p. 432; United States v. Kalish, 690 F.2d 1144 (5th Cir. 1982), at p. 1156.

31 This principle is illustrated by the decision of Doherty J.A. for the Ontario Court of Appeal in R. v. Wiltse (1994), 19 O.R. (3d) 379. In that case, the two accused, Wiltse and Yarema, were charged with first degree murder. Each had provided the police with a false alibi and the Crown sought to use this lie as evidence going to consciousness of guilt. At trial, Wiltse admitted culpability for manslaughter but denied committing murder. Yarema, however, denied any responsibility for the killing. The Ontario Court of Appeal, applying Arcangioli, held that Wiltse’s false alibi had no probative value with respect to the question of whether he was guilty of murder rather than manslaughter. With regard to Yarema, however, the situation was different. The Court noted that Yarema’s false alibi was properly submitted to the jury to determine whether it reflected Yarema’s participation in the homicide, which he denied, or in other illegal conduct, which he admitted.

32 This distinction provides some guidance as to when a “no probative value” instruction will be warranted, but it is not a formula. The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy, supra, at p. 241; Jacquard, supra, at p. 348.

33 It bears emphasizing that in these sorts of cases, while the evidence cannot be said to be irrelevant to the issue in dispute, it might still be withdrawn from the jury by the trial judge on the basis that it is more prejudicial than probative. The same would be true in cases where two separate offences have been committed and the evidence of post-offence conduct provides scant basis for distinguishing between them. Such a decision would fall within the ordinary discretion of the trial judge, however, and would not be mandated by the result in Arcangioli.

The Present Appeals

34 In the present appeals, White and Côté denied any involvement in the murder for which they were charged. It was therefore their identities as the killers, and not their degree of guilt, which formed the issue in dispute at trial. With regard to that issue, the Crown introduced evidence of the appellants’ departure from Ottawa shortly after the murder, along with other evidence indicating that that departure constituted flight from the area: i.e., the fact that the appellants remained away for more than ten days, missed parole meetings and failed to pick up a social assistance cheque; Côté’s calls to inquire about “heat” in Ottawa and to instruct his landlord to pack up his belongings; White’s comments to Corner that he needed a car and money to go away; and the appellants’ commission of the two bank robberies. The Crown also introduced the appellants’ flight from the police in Ottawa, and the fact that they had police scanners in their car. In addition, the Crown led evidence of concealment, including Corner’s testimony that the appellants planned to get rid of the .22 calibre pistol, and White’s attempt to dispose of that gun as he ran from the police in Ottawa.

35 As the Court of Appeal concluded, the foregoing evidence was relevant to the question of whether White and Côté had committed Chiu’s murder. The appellants’ admissions with respect to the parole violations and bank robberies did not alter that result. Accordingly, the trial judge was not required to instruct the jury that the evidence of the appellants’ post-offence conduct had “no probative value” in this case.

C. Standard of Proof for Evidence of Post-Offence Conduct

36 In cases where a “no probative value” instruction is not required and the post-offence conduct of an accused is put before the jury, the trial judge should nevertheless provide an instruction regarding the proper use of that evidence. The purpose of such a charge is to counter the jury’s natural tendency to leap from evidence of flight or concealment to a conclusion of guilt, and to ensure that alternative explanations for the accused’s conduct are given full consideration. In particular, the trial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried. The jury should be instructed to keep these principles in mind when deciding how much weight, if any, to give such evidence in the final evaluation of guilt or innocence.

37 The jury charge in this case complied with those requirements, and the appellants do not claim that there was anything misleading about that charge so far as it went. It is contended, however, that the charge was insufficient because the trial judge did not specifically direct the jury to apply the criminal standard of proof to the evidence of the appellants’ post-offence conduct.

38 It is the appellants’ submission that the jury should have been told that unless they were satisfied beyond a reasonable doubt that the appellants’ post-offence conduct constituted flight or concealment, and moreover that those acts were motivated by the appellants’ sense of culpability for Chiu’s murder and not by some other explanation, the jury could draw no inference of guilt from the conduct, and must set it aside and proceed to consider the balance of evidence in the case. This kind of instruction has persisted as the subject of debate in the provincial Courts of Appeal and in other common-law jurisdictions. See R. v. Burdick (1975), 27 C.C.C. (2d) 497 (Ont. C.A.); R. v. Cole (1980), 53 C.C.C. (2d) 269 (Ont. C.A.); R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.); R. v. Smith (1993), 31 B.C.A.C. 189; R. v. Richens, [1993] 4 All E.R. 877 (C.A.) (calling for such a charge); R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.); R. v. Bouvier (1984), 11 C.C.C. (3d) 257 (Ont. C.A.), aff’d [1985] 2 S.C.R. 485; R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.) (rejecting or casting doubt on the charge). Most recently, the British Columbia Court of Appeal approved of such a charge in Poirier, supra, and the Ontario Court of Appeal followed suit in Court, supra.

39 In the case at bar, the Court of Appeal overruled its prior decision in Court and upheld the validity of the instruction given by the trial judge. I agree with that conclusion and would dismiss that ground of appeal. It is settled that the criminal standard of proof applies only to the jury’s final determination of guilt or innocence and is not to be applied to individual items or categories of evidence: Stewart v. The Queen, [1977] 2 S.C.R. 748, at pp. 759-61; Morin, supra, at p. 354. It is improper for the jury to divide their deliberations into separate stages; their verdict must be based on the record as a whole, not merely on items of evidence which have previously been established beyond a reasonable doubt: Morin, at p. 360. The kind of charge argued for by the appellants is facially inconsistent with these principles, and no persuasive reason has been advanced which would justify creating an exception for evidence of post-offence conduct. The trial judge in this case was not required to give such a charge and indeed he would have been in error had he done so.

40 The basic principles governing this case were stated by Sopinka J. for a majority of this Court in Morin, supra. At issue in Morin was a jury charge concerning three types of evidence: hairs and fibres found in the accused’s car, comments by the accused to an undercover officer named Hobbs, and a confession to a cell-mate. Of particular relevance here were the comments to Hobbs, which included the statement “I . . . red rum the innocent” as well as the accused’s remark that he had a “monk’s mind” in which he could confine his thoughts in separate compartments. At trial, the Crown contended that these somewhat obscure comments to Hobbs, along with the other tendered items, constituted circumstantial evidence of guilt. The accused testified and sought to place an innocent interpretation on his statements. The trial judge’s charge with respect to this evidence is set out by Sopinka J. at p. 355 of his reasons, beginning with the following general instruction:

You are not obliged to accept any part of the evidence of a witness just because there is no denial of it. If you have a reasonable doubt about any of the evidence you will give the benefit of that doubt to the accused with respect to such evidence. Having decided what evidence you consider worthy of belief, you will consider it as a whole, of course, in arriving at your verdict. [Emphasis added by Sopinka J.]

The trial judge in Morin then turned to each category of evidence individually. He instructed the jury that the evidence of hairs and fibres had only limited probative value and did not constitute proof beyond a reasonable doubt. With respect to the accused’s statements to Hobbs, the judge said:

[I]f you find that the evidence of the accused at trial here represents the correct interpretation of those tapes and transcripts, or parts of the tapes and transcripts, or if you have a reasonable doubt that that might be so, you will give him the benefit of the doubt as to those parts of the tapes or transcripts and adopt his interpretation.

An essentially identical charge was given with respect to the evidence of the accused’s statements to his cell-mate.

41 Sopinka J. found, at p. 358, that the foregoing instructions were erroneous because they encouraged the jury to isolate certain items of evidence and to evaluate them piecemeal against the criminal standard of proof:

The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown’s case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown’s case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection.

That error was compounded in Morin by the fact that the judge’s instructions invited the jury to adopt a two-stage analysis in their deliberations, i.e., an initial “fact finding” stage in which items of evidence were to be rejected if not proven beyond a reasonable doubt, and then a “verdict” stage in which guilt or innocence was to be determined on the basis of whatever pieces of evidence remained. Sopinka J. rejected this approach at pp. 360-61:

The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member[s] of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. [Citations omitted.]

In practice it is not practical not only because the jury would have to agree on the same facts but what individual facts prove. Individual facts do not necessarily establish guilt but are a link in the chain of ultimate proof. It is not possible therefore to require the jury to find facts proved beyond a reasonable doubt without identifying what it is that they prove beyond a reasonable doubt. Since the same fact may give rise to different inferences tending to establish guilt or innocence, the jury might discard such facts on the basis that there is doubt as to what they prove. [Emphasis in original.]

While the charge may and often does include many helpful tips on the weighing of evidence . . ., the law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt.

After considering the effect of the trial judge’s errors, Sopinka J. concluded at p. 375 that because the jury may have been led to subject individual items of evidence to the standard of proof beyond a reasonable doubt, “the whole process of decision was distorted and there has not been a proper trial of the appellant”. Accordingly, the appeal was dismissed.

Application to the Case at Bar

42 The decision in Morin is not on all fours with the present appeals since it dealt with admissions and inculpatory statements, which do not necessarily present the same risk of jury error as the more ambiguous evidence of post-offence conduct. Nevertheless, the items of evidence at issue in Morin -- particularly the accused’s comments to Hobbs -- are analogous to the evidence of flight and concealment in these appeals, and the general principles enunciated in Morin are equally applicable here. The inherent difficulty involved in distinguishing between different types of circumstantial evidence only reinforces the holding in Morin that jury deliberations are somewhat holistic in nature and should not be broken down in relation to individual pieces or categories of evidence.

43 The instruction argued for by the appellants in this case would require a jury to evaluate individual items of evidence at the outset of their deliberations, and to exclude those items from further consideration unless they are satisfied beyond a reasonable doubt that the Crown’s interpretation of that evidence is correct. It would require the jury to give the benefit of the doubt to the defence on every item of after-the-fact evidence. That is precisely the kind of approach that was rejected by Sopinka J. in Morin. Post-offence conduct, like any evidence, takes on its full significance and probative value only in the context of the other evidence in the case. Evaluated in a piecemeal fashion, the evidence of post-offence conduct may not allow a jury to conclude beyond a reasonable doubt what the motivation of the accused was for his or her actions. However, in conjunction with all the other evidence in the case, it may indeed assist the jury in determining whether a reasonable doubt exists with respect to guilt or innocence. If such evidence is rejected at the outset of deliberations, the cumulative effect of the record will be lost, and the accuracy of the verdict may be compromised.

44 This principle was illustrated in Bouvier, supra, in which the Ontario Court of Appeal considered a jury charge relating to identification evidence. The trial judge in that case had instructed the jury that they must be satisfied beyond a reasonable doubt that the visual identification of the accused by the complainant and a second witness had been accurate. Martin J.A., writing for the court, noted that the record contained other important pieces of circumstantial evidence -- in particular the fact that a car bearing the accused’s licence number had been seen near the scene of the crime -- and he concluded that the trial judge’s instruction may have encouraged the jury to consider each of those items separately rather than in a cumulative manner. He stated at p. 272:

The jury might not be satisfied beyond a reasonable doubt on either the visual identification or the licence number standing alone, but viewed together, the one in relation to the other, those pieces of evidence might satisfy them beyond a reasonable doubt that the respondent was the assailant.

45 Similarly, the case against White and Côté consisted of several types of circumstantial evidence other than the evidence of post-offence conduct. The Crown introduced evidence seeking to establish:

(1) that the two guns used to kill Chiu were in the possession of the appellants both before and after the murder;

(2) that the appellants admitted to Corner that they had “snuffed” somebody in Ottawa and in particular that they had shot somebody to death with a shotgun and a pistol; and

(3) that the appellants had the opportunity to kill Chiu, who was last seen alive with them just hours before they were seen at a party without him.

The meaning of each of these areas of evidence was necessarily shaped by the others. In particular, the appellants’ statements to Corner might well have made it easier for the jury to conclude that the appellants’ flight from Ottawa and from the police was motivated by their involvement in the murder of Chiu rather than by some other explanation. Equally, the evidence of the appellants’ flight and concealment may have been used by the jury to corroborate the appellants’ statements to Corner and to support the drawing of an incriminating inference from the other circumstantial evidence in the case. As in Morin and Bouvier, each item of evidence in this case, taken individually, constituted only part of the picture. It was only when viewed together that the evidence could reliably support a conclusion of guilt beyond a reasonable doubt.

46 The appellants concede that as a general rule the criminal standard of proof does not apply to individual pieces of evidence. They contend, however, that because post-offence conduct can give rise to an inference that is tantamount to a finding of guilt itself, such conduct is unlike other kinds of circumstantial evidence and should benefit from an exception to the rule in Morin. Specifically, the appellants assert that an act of flight or concealment is not probative of guilt unless the jury is satisfied that the act was motivated by the accused’s awareness of having committed the offence in question; but they point out that once the jury has drawn such an inference of “guilty consciousness”, it follows as a matter of logic that the accused must in fact be guilty, unless he or she was somehow mistaken or delusional about having committed the crime. Because of this danger, the appellants contend that the jury should be required to apply the same standard of proof to its evaluation of post-offence conduct as it would apply to the ultimate issue of guilt, i.e., proof beyond a reasonable doubt.

47 That argument is not persuasive. There is no principled basis for the claim that evidence of after-the-fact conduct is substantively different from other kinds of circumstantial evidence, or that it should be accorded special status during jury deliberations. Other types of highly incriminating evidence which present essentially the same kinds of risks do not receive such treatment. In particular, a pretrial oral admission of guilt, which, as the Court of Appeal observed at p. 26, “goes more directly to the ultimate issue than circumstantial evidence of consciousness of guilt”, is not subject to a separate reasonable doubt analysis: Stewart, supra, at pp. 759-61; Minhas, supra, at p. 210. As Weiler J.A. observed in Peavoy, supra, at p. 237, “[t]here is nothing magical or unique about evidence of after-the-fact conduct.” It is simply some evidence which is to be considered and weighed by the jury, together with the rest of the evidence, in deciding whether the accused is guilty or innocent. The fact that such evidence may by its nature be compelling and inculpatory does not have the effect of modifying the evidentiary threshold required by criminal law — namely, that all the evidence, when considered together, must give rise to proof beyond a reasonable doubt.

48 It is true that a jury may regard an act of flight or concealment as an admission of guilt by conduct, and there is a danger that such evidence could lead a jury to leap erroneously to a conclusion of guilt. As explained below, however, the proper remedy for that danger is not the imposition of a separate burden of proof, but rather an instruction to the jury to be cautious about drawing an incriminatory inference from such evidence and a reminder that all the evidence in the case must be considered.

49 As a practical matter, if the trial judge invoked the criminal standard of proof as a threshold test for using evidence of post-offence conduct, there would be a risk of confusing the jury and inviting them to short-circuit their deliberations. If the jury determined beyond a reasonable doubt that the accused fled or lied because he or she was aware of having committed the crime charged, they would be less likely to give full consideration to the rest of the evidence. If, on the other hand, the jury failed to determine the motivation of the accused to such a high standard of proof, they would be forced to exclude the evidence of post-offence conduct, which might otherwise be useful in the context of the case as a whole. In either case, the verdict is likely to be reached on the basis of less than all the evidence.

50 The appellants submit, in the alternative, that it is permissible for a jury to apply the reasonable doubt standard to specific items of evidence provided they do so in light of the evidence as a whole, rather than in isolation. In their view, Morin stands for the limited proposition that individual items of evidence must not be assessed in a “piecemeal” fashion. They submit that this Court’s decision in R. v. MacKenzie, [1993] 1 S.C.R. 212, “refined” that holding and made clear that the jury may apply the criminal standard of proof when deciding whether to accept or reject a particular piece of evidence, as long as they do not lose sight of the larger evidentiary context in the process.

51 MacKenzie is distinguishable from these appeals and does not defeat the applicability of Morin. In MacKenzie, the accused had made an out of court admission and then sought to place an innocent interpretation on that statement at trial. The case therefore dealt with a conflict between two facially inconsistent pieces of evidence going to the crucial issue in the case. The trial judge instructed the jury that they should consider both the admission and the subsequent testimony of the accused in light of all the evidence before them; if they accepted the testimony as true, or if they had a reasonable doubt about it being true, they should reject the earlier admission relied upon by the Crown. On appeal, this Court held that the jury charge was not improper. La Forest J., for the majority, stated at pp. 236-37:

As a final general comment, it is important to keep in mind just what MacIntosh J. was striving to achieve in these impugned passages. The contradiction between the accused’s out-of-court statement and his testimony at trial was a key issue in the case, and the trial judge was entitled, in his review of the evidence, to give hints to the jury on how to assess such important issues: see Morin at p. 361. MacIntosh J. suggested that the jury focus on the two statements, and pointed out that as a matter of logic the two could not coexist. In my view his suggestion that one of the statements must be “rejected”, couched as it was with the proviso that all of the other evidence must be taken into account, in no way prejudiced the Crown.

With respect to Morin, La Forest J. stated at p. 239:

I do not view this discretion of a trial judge to instruct on “rejecting” evidence as some exception to, or modification of this Court’s disapproval of a two-stage process of evaluating evidence. Rather, it is merely a reflection of the reality of jury deliberations -- on important items of evidence the jury may require guidance on how to approach its task. As in this case, where a statement by an accused at trial is entirely at odds with a previous out-of-court statement by the accused, and the jury believes the statement at trial, or is left in reasonable doubt that it is true, then the jury must reject the out-of-court statement; the accused must be given the benefit of the doubt. In arriving at that conclusion, the jury should, of course, give consideration to the evidence as a whole.

52 MacKenzie pointedly does not provide that a jury may sift through the evidence and reject any item that is not proven beyond a reasonable doubt. Unlike Morin, MacKenzie dealt with the credibility of conflicting statements going directly to the ultimate issue in dispute. The jury’s decision to believe or disbelieve the statement relied upon by the Crown necessarily amounted to choosing between the two competing theories of the case. In those limited circumstances, it was held that the trial judge could instruct the jury not to believe the Crown’s evidence if, in light of the case as a whole, including the contrary testimony of the accused, they had a reasonable doubt that the evidence was true. As La Forest J. noted at p. 240, quoting Freeman J.A. in the judgment below:

The ordinary meaning of “reject” is to refuse to accept, and on the whole of the charge there is no reason to conclude the jury would have understood it in any other sense. In that light if the jury understood they were to refuse to accept the statement as proof of the event it described until they were satisfied of the guilt of the accused on the whole of the evidence including the statement, I can see no difficulty. [Emphasis added.]

This approach is consistent with the principle, enunciated in prior decisions of this Court, that where there is a question of credibility between defence and Crown evidence on a vital issue, the jury should be told to consider the record as a whole and to give the benefit of the doubt to the accused’s version of events, rather than simply choosing the more believable of the two accounts: Nadeau v. The Queen, [1984] 2 S.C.R. 570, at pp. 572-73; Morin, supra, at p. 362; R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 749-50. Given the dispositive nature of the evidence in question, there is little risk that such an instruction would be misleading, since a jury would ultimately have to apply the criminal standard to the evidence in any event by virtue of the general instructions regarding the burden of proof. Therefore, although the instruction does focus the jury’s attention on two pieces of evidence, in its effect it is not much different from telling them that if all the evidence in the case raises a reasonable doubt in their minds about the guilt of the accused, they must acquit.

53 It makes no sense to extend the reasoning of MacKenzie to a case where, as here (and in Morin), the Crown has introduced items of circumstantial evidence that are subject to different interpretations and are not individually crucial to the determination of the ultimate issue. It will always be error for the trial judge to instruct a jury to apply a reasonable doubt standard to such evidence, even if the instruction is couched in terms of the record as a whole. The facts of this appeal provide an example of how such a charge can undermine the deliberation process. The appellants contend that the jury should have been instructed not to rely on any evidence of post-offence conduct in this case unless they could first draw the inference -- beyond a reasonable doubt and on the basis of all the other evidence in the case -- that such conduct was motivated by the appellants’ awareness that they had killed Chiu and their desire to escape detection for that crime. In making that determination, the jury would have had to weigh not only the evidence of the bank robberies and parole violations, but also the evidence of the appellants’ opportunity to kill Chiu, their connection to the murder weapons, their comments to Corner, and any other evidence which might have made it more or less likely that the appellants had actually committed the murder and, by extension, that their subsequent actions were motivated by their awareness of that fact. Obviously, to draw an inference of consciousness of guilt beyond a reasonable doubt following such an analysis would be no different from concluding that the appellants were in fact guilty of murdering Chiu.

54 In this sense, the jury charge suggested by the appellants might set the deliberation process backwards: instead of directing the jury to use the evidence of post-offence conduct in their determination of guilt or innocence, it would require them to decide the ultimate issue as a predicate to using the evidence in the first place. It would collapse the entire jury deliberation into an analysis of the significance of a single act of the accused, and would make all the other evidence in the case merely supportive of that determination. Such an instruction would thus have the perverse effect of transforming any piece of evidence of after-the-fact conduct, no matter how minor in the scheme of the Crown’s case, into crucial evidence.

55 This does not mean that a jury may never be instructed to apply the reasonable doubt standard to evidence of post-offence conduct. In the rare case where evidence of flight or concealment is the only evidence or constitutes substantially all of the evidence of the Crown, it follows that such evidence must be proven beyond a reasonable doubt in order to support a conclusion of guilt, and it would not be error for the trial judge to make this clear to the jury. In addition, where evidence of post-offence conduct is so crucial to the Crown’s case that the final determination of guilt necessarily turns upon it, and the evidence is subject to two directly conflicting interpretations, the trial judge would be justified in telling the jury that in choosing which theory to believe with respect to that evidence, they should consider the record as a whole and give the benefit of the doubt to the accused. As in MacKenzie, however, such a charge would only be proper if it did not involve any significant departure from the standard of proof that the jury would properly apply in any event by virtue of the general instruction on reasonable doubt.

56 Much of the confusion in this area of the law stems from the practice of categorizing evidence of flight or concealment in terms of the conclusion which the Crown seeks to draw from it, namely that it establishes the “consciousness of guilt” of the accused. That inference, going as it does so directly to the ultimate issue of guilt, is properly to be drawn only at the end of the jury’s deliberations, once all the evidence has been considered. Hiving such evidence off at the outset and subjecting it to a separate reasonable doubt analysis creates a logical conundrum and raises the very real danger that the jury will never consider all the evidence together. That is precisely the concern which animated this Court’s decision in Morin. Moreover, if such an approach were accepted with respect to evidence of post-offence conduct, there is no reason in principle why it could not also apply to many other kinds of circumstantial evidence, since the jury must always ask itself whether a particular piece of circumstantial evidence points to guilt rather than to some other reasonable explanation.

57 A good deal of the difficulty disappears once the discussion of “consciousness of guilt” is eliminated from the trial judge’s instruction. It is preferable simply, in the spirit of Morin, to leave evidence of flight or concealment evaluated, but somewhat at large until the final stage of putting all the evidence together and seeing if it proves the case beyond a reasonable doubt. As previously noted, there is a risk that juries might jump too quickly from evidence of post-offence conduct to an inference of guilt. However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day.

58 In this case, the trial judge properly instructed the jury that the appellants’ acts of flight and concealment constituted evidence “which may be considered and weighed by you as triers of fact, together with all the evidence, in deciding the guilt or innocence of the accused”. He reminded the jury that flight or concealment does not necessarily imply guilt, but can arise from any number of innocent motives, and he gave examples of such motives. He further instructed the jury that there might be “very valid reasons” for the appellants’ conduct other than their guilt for Chiu’s murder; again, he reviewed the alternative explanations put forth by the defence, namely the parole violations and the bank robberies. The trial judge did make several references to drawing an “inference of consciousness of guilt”, which, in light of these reasons, was not ideal; he did not, however, categorize the evidence in terms of that inference, but rather referred to “the evidence of flight and concealment”. On the whole, as the Court of Appeal concluded, the jury charge relating to the evidence of post-offence conduct was adequate as given. Had the trial judge imposed an artificial threshold of reasonable doubt on this isolated aspect of the jury’s analysis, he would have been in error.

D. Other Grounds for Appeal

59 The remaining grounds for appeal raised by the appellants concern the sufficiency of the jury instructions with regard to planning and deliberation, aiding and abetting, reasonable doubt, prior convictions, the lack of evidence of motive, and the reliability of the testimony of Paul Corner. We have considered the appellants’ arguments and agree with the Court of Appeal’s disposition of those issues.

V. Conclusions

60 There was no need in this case for the trial judge to issue a “no probative value” instruction pursuant to Arcangioli. Nor would it have been correct for the trial judge to instruct the jury to apply the reasonable doubt standard to its evaluation of the evidence of the appellants’ post-offence conduct. The trial judge’s instructions were adequate, and the Court of Appeal did not err in so finding. These appeals should be dismissed.

Appeals dismissed.

Solicitor for the appellant White: David E. Harris, Toronto.

Solicitor for the appellant Côté: Patrick F. D. McCann, Ottawa.

Solicitor for the respondent: Susan L. Reid, Toronto.