CITATION: R. v. Derby, 2013 ONSC 2771
COURT FILE NO.: CRIM(P)2142/12
DATE: 20130524
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JEROME DERBY
Applicant
A. Cornelius, for the Respondent
J. Myers and P. Zaduk, for the Applicant
HEARD: May 9, 2013
RULING APPLICATION BY DEFENCE TO EXCLUDE EVIDENCE OF POST-OFFENCE CONDUCT
Fragomeni J.
[1] The post-offence conduct the Crown seeks to call is the following:
Immediately following the shooting in the hotel room on November 7, 2010 Mr. Derby fled the scene. This evidence is already before the Jury from the testimony of Sara Munn and Ryan Fenton;
A warrant was issued for the arrest of Mr. Derby;
The police attempts to locate Mr. Derby were unsuccessful;
The police receive information that leads them to believing Mr. Derby is in Hamilton. As a result they show his photo around parts of Hamilton;
Mr. Derby is located about 9 months after the November 7, 2010 incident coming out of a convenience store in Hamilton. Mr. Derby is seen with another individual;
Cst. Heyes approaches Mr. Derby and advises Mr. Derby he is under arrest. Mr. Derby runs from the officers and a chase takes places. Mr. Derby is subsequently caught and detained.
During the chase Mr. Derby throws his knapsack at the officer. The knapsack contains scales.
[2] The defence submits that this post-offence conduct is not relevant and its prejudicial effect outweighs any probative value that it has to any issue at trial. The defence argues that the Court should exercise its discretion to exclude that evidence.
[3] The Crown submits that the post-offence conduct is relevant and ought not to be excluded. The jury will be properly instructed on how to use that evidence of post-offence conduct and it is a piece of circumstantial evidence that should not be taken from the jury.
Analysis and Conclusion
[4] In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72 (S.C.C.) the court dealt with the issue of post offence conduct commencing at para. 19. At paras. 19 and 21 the court states:
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), 1997 CanLII 3028 (ON CA), 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.
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.
[5] The Court in White also set out the following at para. 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.
[6] In R. v. Stiers, [2010] O.J. No. 2185 (Ont. C.A.) the court also dealt with the issue relating to post-offence conduct. At paras. 56 and 57:
However, the relevance of evidence of post-offence conduct will depend upon the nature of the conduct, the facts sought to be inferred from it, the positions advanced by the Crown and the accused, and the totality of the evidence. Further, it follows that "no prefabricated rule stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue": see R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163, at paras. 78-79; R. v. Figueroa (2008), 2008 ONCA 106, 233 O.A.C. 176 (C.A.), at paras. 34-35. Accordingly, it has been held that where the accused's mental state is in issue, for example, through evidence of intoxication, evidence of the accused's after-the-fact conduct could support an inference that, despite intoxication, the accused did have sufficient awareness to form the requisite intent for murder: see Peavoy, at pp. 631-32.
I agree with the respondent that this was not a case for an instruction that the evidence of after-the-fact conduct had "no probative value". The after-the-fact conduct evidence was relevant in two ways. First, as the appellant relied on self-defence as a way to excuse the killing, his after-the-fact conduct could be used to infer his awareness of having committed a culpable homicide. Second, the evidence of the appellant's purposeful conduct after the offence was probative of his mental state and capacity immediately following the stabbing and, therefore, was arguably relevant to the issue of his capacity to form the requisite intention for murder or to commit a planned and deliberate murder.
[7] In R. v. Palmer, 2010 ONCA 804, [2010] O.J. No. 5096 (Ont. C.A.) the court comments on the appropriate instructions the jury should be given at para. 12 as follows:
In this case, we agree that the trial judge should not have told the jury that they could look at the appellant's conduct after the shooting when considering whether he should be convicted of murder or manslaughter. It also would have been preferable had she specifically instructed the jury that the post-offence conduct evidence could have a bearing on:
Whether the Crown had proved that the appellant had committed a culpable homicide and did not act in self-defence; but that it had no probative value as to:
The appellant's consciousness of having committed second degree murder, as opposed to manslaughter.
See R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.) at pp. 631-32; R. v. Stiers 2010 ONCA 382 at paras. 59-61.
[8] In R. v. Peavoy, 1997 CanLII 3028 (ON CA), [1997] O.J. No. 2788 (Ont. C.A.) Weiler J.A. noted the following:
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. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.
[9] In R. v. Latoski, 2005 CanLII 30697 (ON CA), [2005] O.J. 3565 (Ont. C.A.) the court commented on the trial judge's charge on the appellant's post-offence conduct as follows at paras. 25 and 26:
The trial judge instructed the jury that it could take into account the appellant's conduct after the stabbing when he encountered the police, in determining whether he was aware he had committed a culpable act and whether he acted in self-defence. The appellant acknowledges that the trial judge was entitled to instruct the jury on the appellant's post-offence conduct but submits that he did not do so fairly because he did not tell the jury the appellant's innocent explanation for his conduct.
I agree that the trial judge's review of the appellant's position was not as thorough as it should have been. But I am also of the view that his charge on the appellant's post-offence conduct did not cause a miscarriage of justice.
[10] The final case I wish to refer to is R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. At paras. 22 and 31 the court set out the following guiding principles:
The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), "[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may [page450] be highly incriminating, while in others it might play only a minor corroborative role" (para. 21). As with all other evidence, 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 as for all other circumstantial evidence. Thus, while the term "consciousness of guilt" may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged - provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated.
Given that "[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence", the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, such evidence must be relevant to a live 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 the discretion to exclude evidence whose prejudicial effect outweighs its probative value. These same principles also determine the need for and scope of a limiting instruction.
[11] I agree with the Crown's position on this issue. The jury should be entitled to hear this evidence and determine what weight to attach to it after considering the totality of the evidence called at trial. The jury will be instructed on how to use this evidence. I am satisfied that this is a piece of circumstantial evidence that the jury should be allowed to have in their determination of the issues. One of the defences being advanced in this case is self-defence.
[12] As in the Palmer and Stiers decisions, this post-offence conduct is probative on the issue of whether the Crown proves that Mr. Derby committed a culpable homicide and did not act in self-defence.
[13] The concept of prejudice is not that the evidence does not favour the accused. Prejudice occurs when the jury misuses the evidence for an improper purpose.
[14] I am not satisfied that I should exercise my discretion in favour of exclusion. The jury has already heard testimony from two of the Crown's main witnesses that Mr. Derby fled the scene after the shooting. They will be instructed accordingly on how to deal with that evidence. Hearing now that upon being arrested, he fled from the police is not in my view, considering the evidence as a whole, so prejudicial that it points to exclusion. The evidence of this post-offence conduct is relevant and probative and the jury, after hearing the entirety of the evidence and my instructions, will assign to that evidence the weight they consider appropriate.
[15] I am not satisfied in all of those circumstances that I should take this evidence away from the jury.
[16] The defence Application to exclude this evidence is, therefore, dismissed.
Fragomeni J.
Released: May 24, 2013
CITATION: R. v. Derby, 2013 ONSC 2771
COURT FILE NO.: CRIM(P)2142/12
DATE: 20130524
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JEROME DERBY
RULING APPLICATION BY DEFENCE TO EXCLUDE EVIDENCE OF POST-OFFENCE CONDUCT
Fragomeni J.
Released: May 24, 2013