R v Calnen – 2019 SCC 6 (Moldaver):

[106] After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed. It covers a large range of possible circumstances, and its content and contours are confined only by the limits of human experience. After-the-fact conduct may also arise in respect of all types of criminal offences and in different legal settings: for example, in cases in which the accused pleads not guilty, admits all or part of an offence, admits some of the offences charged, and/or asserts a defence, excuse, or justification. It is this potential breadth, variety, and mix of considerations that lies at the heart of the much repeated observation that the proper legal treatment of after-the-fact conduct is highly context and fact specific.

[107] As with other types of evidence, evidence of after-the-fact conduct is admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects.

[108] Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered to establish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D.M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In other words, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a “minimum probative value”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 38. As the admissibility of after-the-fact conduct evidence is, “[a]t its heart”, one of relevance, determining the relevance of any piece of after-the-fact conduct evidence is necessarily a case-by-case, “fact-driven exercise”: White (2011), at paras. 22 and 42; see also R. v. White, [1998] 2 S.C.R. 72, at para. 26.

[109] To establish materiality, the evidence must be relevant to a live issue; if it is not relevant to a live issue, it must be excluded or the jury should be instructed that the evidence is of no probative value: see White (2011), at para. 36.

[110] Trial judges retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: see White (2011), at para. 31. Counsel for Mr. Calnen sought the exclusion of the after-the-fact conduct evidence in a voir dire, on the basis that its prejudice outweighed its probity. The trial judge admitted portions of Mr. Calnen’s statement to the police and found that the probative value of the evidence outweighed any prejudicial effect.

[111] After-the-fact conduct is circumstantial evidence. Like other forms of circumstantial evidence, after-the-fact conduct allows a fact finder to draw particular inferences based on a person’s words or actions: see White (1998), at para. 21; White (2011), at para. 22; Peavoy, at para. 24. This process of inductive reasoning is a cornerstone of the law of evidence, and is used frequently to draw inferences from circumstantial evidence, as well as to assess credibility and to determine the relevance and probative value of evidence: see D. M. Tanovich, “Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide” (2013), 99 C.R. (6th) 338.

[112] In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct”: Smith, at para. 78. (2) Articulating the Purpose and Use of the Evidence and the Proposed Inferences

[113] In addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use. Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.

[114] This case illustrates how admissibility assessments are to be tied to intended uses and do not exist in the abstract. Clearly, Mr. Calnen’s actions in relation to Ms. Jordan’s body would have been admissible to the charge of interference with human remains, had he not pled guilty to that charge. It was also common ground that his actions were admissible and could be used to rebut the allegation of accident, and to establish causation and an unlawful act for the included offence of manslaughter. The divisive evidentiary issue was whether or not Mr. Calnen’s actions to destroy Ms. Jordan’s body were relevant and admissible for the purpose of establishing intent to commit second degree murder.

[115] While the focus should be on the intended use of the evidence when determining admissibility and crafting jury instructions, it is also important to expressly state the inferences available to the jury. In Rodgerson, this Court made clear that judicial expertise may be required in order to “present the evidence and the available inferences to the jury in a comprehensible form”: para. 31. The question in this case was therefore whether, as a matter of logic, common sense, and human experience it was open for the jury, on these facts, to infer Mr. Calnen’s mental state at the time of Ms. Jordan’s death from what he subsequently did to destroy her body. The inference on intent advanced by the Crown is based on the following chain of reasoning: Ms. Jordan’s body would, if available, reveal how she died. Mr. Calnen took extraordinary steps to destroy Ms. Jordan’s body. Therefore, the common sense inference is that Mr. Calnen destroyed the body in order to conceal the nature and extent of her injuries and the degree of force required to inflict them because such may have been evidence of intent. The after-the-fact conduct evidence – – the extraordinary steps that Mr. Calnen took to completely destroy Ms. Jordan’s body — makes the proposition that Mr. Calnen intended to inflict the requisite type of bodily harm for second degree murder more likely than without this evidence. (3) Cautions and Limits

[116] Even if admitted for a particular purpose, after-the-fact conduct may pose some unique reasoning risks: see D. M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275. Conduct that is “after-the-fact”, and therefore removed in time from the events giving rise to the charge, carries with it a temporal element that may make it more difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions.

[117] To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation: see White (1998), at para. 22; White (2011), at paras. 23-25; R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 143. Page 33

[118] However, in addition to this general instruction, trial judges should consider whether any further specific limiting instructions or cautions may be required to counter any of the specific reasoning risks associated with the particular after-the-fact conduct at issue. In some cases, courts have recognized that certain types of evidence have other reasoning risks associated with them. For example, additional guidance may be necessary where after-the-fact conduct relates to the accused’s demeanour, false alibis or lies put forward by the accused, or the silence or refusal (or, conversely, the readiness) of an accused to take part in an investigation: see Paciocco. Individual attention to the actual evidence at issue is necessary because any caution or limiting instruction is also context and fact specific, and needs to be fashioned to meet the specific risks posed by the particular type of after-the-fact conduct at issue in any given case. B. After-the-Fact Conduct and Intention

[119] Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent. The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant to the issue of intent and may be used to distinguish between different levels of culpability (see White (1998), at para. 32; White (2011), at para. 42; Rodgerson, at para. 20). Specifically, this Court has said that “[w]hether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial”: White (2011), at para. 42. There is therefore “no per se rule declaring post-offence conduct irrelevant to the perpetrator’s state of mind”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20, per Doherty J.A. As there are also no automatic labels which make certain kinds of after-the-fact conduct always or never relevant to a particular issue, “we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it”: see R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55.

[120] This Court’s decision in Arcangioli does not stand for the proposition that after-the-fact conduct cannot, as a matter of law, be used to establish intent or levels of culpability as between different offences. In that case, the accused fled the scene and admitted only that he punched the victim (common assault), but claimed he did not stab him (aggravated assault). In that context, the Court said that “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 such evidence has no probative value with respect to any particular offence”: p. 145.

[121] When grounded in its facts, Arcangioli simply established that where an accused has admitted culpability, after-the-fact conduct evidence may, in some cases, be unable to assist the trier of fact in determining the accused’s level of culpability as between two offences: see pp. 145-46; White (1998), at para. 23; White (2011), at para. 41; Angelis, at para. 53. This Court subsequently tied that finding to when the accused admitted the actus reus, saying that a no probative value instruction on intent 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. (White (1998), at para 28)

[122] However, Justice Rothstein expressed it this way in White (2011), at para. 37: Arcangioli, and its successor case White (1998), stand for the proposition that a “no probative value” instruction will be 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).

[123] Some read this passage to suggest that the reasoning in Arcangioli is not limited to cases in which the accused has admitted culpability: see Paciocco, at p. 318. I agree. However, relevance is tied directly to the issues raised at trial: White (2011), at para. 42. The presence of an admission is an important contextual factor because it establishes a baseline culpability such that the legal issue becomes whether the after-the-fact conduct evidence is equally consistent with two or more offences. When an accused denies culpability in respect of the offence charged and any included offence, the legal issues are different and the comparison expands to include other potential inferences, specifically that there has been no offence committed at all. That said, an admission is not the only way to establish culpability. The above passage from White (2011) addresses the stage of the analysis when there are two or more offences under consideration: a point at which some baseline culpability has already been established. Culpability will arise whenever the fact finder has determined that the presumption of innocence has been rebutted by proof beyond a reasonable doubt and any proffered defence of accident has already been rejected. It should not matter whether that culpability arises from an admission or a finding to that effect.

[124] After-the-fact conduct evidence will not always or necessarily be equally consistent with two offences, and it is open to the trier of fact to conclude that the conduct is more consistent with one offence than the other: see White (1998), at para. 27. The key is therefore determining what “equally explained by” or “equally consistent with” means. This Court has never said that every time multiple possible explanations for conduct are proposed, they become “equally probable” and the evidence in question therefore loses relevance (because it does not make any fact more or less likely). The existence of alternative explanations for the accused’s conduct does not mean that certain evidence is no longer relevant. The overall conduct and context must be such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic. This is a composite standard in which the three considerations interact and one may take on greater significance in a particular case. For example, when hypothetically it could be one offence or another, common sense and experience may support one inference over the other. Pure logic is not the only, or even primary consideration. Any threshold determination of relevance must also respect that it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it, and “[f]or the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role”: White (1998), at para. 27.

[125] A key factor in assessing probative value is the specific nature of the conduct. In Arcangioli, when the sole issue was whether flight by the accused made it more likely he committed a common or aggravated assault, the nature of that accused’s conduct was singular, relatively simple, and occurred over a short period of time. In contrast, the nature of Mr. Calnen’s conduct is very different. Mr. Calnen acted over the course of many days, he took numerous risky steps to achieve the total destruction of evidence, and he began to burn Ms. Jordan’s body only after he learned that the missing person investigation had become a homicide investigation. There is a wide range of possible ways to alter, conceal or destroy evidence: from trying to wipe a surface clean to completely obliterating the evidence. What steps were taken, when they were taken, and at what risk may all be factors to consider when assessing the nature of the conduct in a particular case.

[126] The relationship between any explanation provided by the accused for his or her actions and the accused’s actual actions may also inform the determination of whether the inference is reasonable and rational as a matter of logic, common sense, and human experience. In White (1998), at para. 32, the Court stated: 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. When assessing the actions of an accused and the inferences that may be drawn from the after-the-fact conduct at the admissibility or no probative value stage, the trial judge may take into account the disproportionality between the explanation proffered and the conduct at issue. (1) After-the-Fact Conduct Evidence May Be Admissible on Intent

[127] In Rodgerson, this Court considered how evidence of concealment and the destruction of evidence may be probative on the issue of the accused’s intent. In that case, the accused claimed that he was acting in self-defence when he caused the deceased’s death. He said that the deceased attacked him with a knife, and the two struggled. He pressed down on the deceased’s face with his forearm until she apparently passed out, and he passed out shortly thereafter. When he awoke in the morning, he found that she was dead. The accused moved the deceased’s body to the backyard, where he removed her clothing and jewelry, placed the body in a shallow grave, poured bleach over it, and filled the grave with dirt. He disposed of items including the bloodstained mattress and carpet and used bleach to clean his home.

[128] The issue in that case was whether the evidence of the accused’s concealment of the body and his attempts at clean up were relevant to the issue of his intent at the time of her death. The Court found that these actions were relevant to the accused’s intent, stating: It is relatively straightforward to understand how Mr. Rodgerson’s efforts at concealment and clean-up were capable of supporting the inference that he acted unlawfully. The jury could reasonably have concluded that he was attempting to conceal evidence of a crime that he had committed — that is, unlawfully causing Ms. Young’s death. However, these efforts were also capable of supporting the further inference that he was acting not merely to hide the fact that a crime had occurred, but to hide the extent of the crime. In other words, the jury might reasonably have concluded that he sought to conceal Ms. Young’s body and clean up the scene of her death in order to conceal the nature and extent of Ms. Young’s injuries and the degree of force required to inflict them. As indicated, the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill Ms. Young or cause her bodily harm which he knew was likely to cause death. This is not the only inference that could be drawn from the concealment and clean-up, but it is one the jury was entitled to draw. [Emphasis deleted; para. 20.]

[129] The inferences available in Rodgerson are virtually identical to the inferences proposed by the Crown in this case. The Crown argued that Mr. Calnen’s extraordinary efforts to destroy the body support the further inference that he was not simply acting to conceal evidence of a crime he committed, but also to hide the extent of that crime because the nature and extent of her injuries were such that they would support a further inference that the person who inflicted them had the intent for second degree murder. This flows from common sense inferences. First, that the nature of some wounds may make them relevant to intent on second degree murder: for example, a knife wound to the heart. And second, the more severe the injuries, and the more force required to inflict them, the stronger the inference that Mr. Calnen had the requisite intent for second degree murder. 130 The Defence argued, and the majority of the Court of Appeal accepted, that the reasoning in Rodgerson was unavailable here because, in that case, there was physical and forensic evidence about the nature and extent of the deceased’s injuries. The Defence asserted that in the absence of similar physical evidence of the cause of death or the nature and extent of Ms. Jordan’s injuries, using after-the-fact conduct as evidence of intent was pure speculation in the guise of an inference. Without knowing what Ms. Jordan’s injuries were, there was nothing to ground the chain of reasoning. The majority of the Court of Appeal looked at the other evidence in the trial to determine if there was a sufficient logical connection between this conduct and Mr. Calnen’s intent. Concluding that there was no other such evidence, the majority held that the requested inference on intent was simply speculative. The majority stated: I wish to make a broader reference to cases to explain, as I understand it, why in some cases after-the-fact conduct is probative of the issue of intent, yet in others it is not. When doing so I keep in mind that the case on appeal is somewhat unique. The only evidence, other than the appellant’s statement to the police and his re-enactment, is the circumstantial evidence based on texts to and from Ms. Jordan’s phone and the appellant’s after-the-fact conduct. That puts the issue of what limitations there are in the use of after-the-offence conduct to prove both causation and intent squarely before the court. In other cases where after-the-fact conduct has been used to prove intent there was other evidence to be considered. [para. 56]

[131] In my view, this claimed distinction fails to persuade. First, this appeal does not require the Court to determine whether after-the-fact conduct evidence, alone, can be used to infer intent. This was not a case in which the only evidence adduced by the Crown was the contested after-the-fact conduct evidence. There was other evidence to be considered in this case. Indeed, the above-cited paragraph itemizes some of the other evidence before the jury: texts to and from Ms. Jordan’s phone, Mr. Calnen’s statement to the police, and his re-enactment. There was also the non-contested after-the-fact conduct evidence, the photographs of the home and stairwell, measurements of the stairwell, Ms. Jordan’s theft of Mr. Calnen’s ring and laptop, and the police evidence about finding no forensic evidence in the home (which included no signs of a clean up and no physical damage to the stairwell, walls, or railings).

[132] Second, nothing said by this Court in Rodgerson conditions an inference concerning intent on the presence of other physical or forensic evidence demonstrating the nature and extent of injuries suffered by the deceased. Such other evidence may strengthen the inference of intent, as it did in Rodgerson, but Rodgerson does not suggest that the physical evidence available in that case was a necessary prerequisite for any inference on intent. The chain of reasoning employed by the Court in Rodgerson, linking the destruction of evidence and intent for murder, does not arise from, nor rest upon, the presence of other confirmatory or contradictory evidence. It is not the law that an offence must be separately established before after-the-fact conduct evidence can be used by the trier of fact to determine an accused’s intent; after-the-fact conduct evidence is not merely complementary evidence.

[133] The idea that the probative value of particular after-the-fact conduct may be assessed by reference to the record as a whole simply conveys that whether an inference is rational and reasonable must be assessed in context. It does not mean that no reasonable and rational inference can be drawn from the after-the-fact conduct unless there is some other direct evidence that somehow supports or corroborates it. It may be that other evidence supports a particular inference (like a body which demonstrates certain injuries were sustained), but such is not a precondition when the inference is available as a matter of common sense, logic, and human experience. The suggestion that additional and direct evidence of the nature and extent of the deceased’s injuries is required before an inference is available thus finds no basis in the jurisprudence, and cannot be reconciled with the general principles and practices which govern admissibility determinations. After-the-fact conduct is assessed in context. Its significance may be strengthened or weakened by the presence or absence of other evidence, but it is not a secondary form of evidence.

[134] Not only is it an error to relegate after-the-fact conduct evidence to a supporting or secondary role, there is also a need to maintain the distinction between the threshold admissibility of evidence and the separate issue of whether the Crown has met its ultimate burden of establishing the guilt of the accused beyond a reasonable doubt. The test for the admission of evidence is first focussed on relevance, and the tendency of the evidence, as a matter of logic, common sense and human experience, to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. After-the-fact conduct evidence, when admitted, simply adds that piece of evidence as a building block in the Crown or Defence case. It is at the end of the case, when all the evidence has been heard, that the fact finder is required to determine how much, if any, weight they will place on this evidence, how it fits with other evidence, and whether, based on the totality of the evidence, the Crown has proved the charges beyond a reasonable doubt. Conflating these standards means that those charged with the difficult task of weighing evidence and determining innocence or guilt may be deprived of relevant evidence.

[135] In addition, the absence of supporting physical evidence does not, as a general rule, make the inference sought speculative. To hold otherwise is to unduly limit the scope of after-the-fact conduct evidence in certain cases, and to place cases in which the accused has successfully destroyed the body of the deceased beyond the realm of proof. As in all cases engaging after-the-fact conduct evidence, the strength of the inference will be determined by the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence: Smith, at para. 77. If the totality of the evidence satisfies the chain of reasoning for a particular inference, then that inference is available — regardless of whether supporting physical evidence is part of the evidentiary record.

[136] Other cases have recognized that the absence of a body does not preclude an inference on intent. In R. v. Teske (2005), 32 C.R. (6th) 103, the Ontario Court of Appeal considered the relevance of after-the-fact evidence of concealment to the issue of the accused’s intent. In that case, the accused admitted to cremating his wife’s body. He claimed that his wife had died during an altercation during which she was punching and kicking him; he pushed her, and she fell down the stairs, hit her head, and died. He stated that after he cremated his wife’s body in the backyard of their home, he spread her ashes on the river — later, he admitted that he had actually dumped her ashes in a ditch. A police search of the ditch revealed the victim’s ashes, bones, and teeth, as well as carpet from the accused’s vehicle. Further, a forensic examination of the home exposed significant efforts to clean up evidence of bloodstains and blood spattering.

[137] The Ontario Court of Appeal concluded that the accused’s after-the-fact conduct could be admitted as evidence of his intent to commit murder. The court recognized that “[t]he evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial”: para. 85. As a matter of common sense and human experience, when viewed in the entire evidentiary context, some after-the-fact conduct may be “reasonably capable” of supporting an inference as to the accused’s state of mind at the relevant time: para. 85. The court described the reasonableness of the inference sought, in that case, as follows: The trial judge found that the appellant’s course of conduct from the time he killed his wife on Sunday evening until his arrest some four days later was consistent with the conduct of a person who had intentionally inflicted serious injuries on his wife and then went to great length to try to cover up what he had done and to develop an “innocent” explanation for his wife’s disappearance. For example, the trial judge’s conclusion that the appellant’s cremation of his wife’s body, which took several hours and created a strong stench, was a calculated and risky attempt to ensure that the police would be unable to determine the cause of Mrs. Teske’s death and the exact nature of her injuries. Proof of those facts could have gone a long way to determining whether the appellant acted with the intent required by s. 229(a)(ii) when he caused his wife’s death. As a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death. The appellant engaged in an elaborate cover-up of his wife’s killing. Faced with this evidence, the trial judge inferred that the appellant had engaged in this concerted effort to cover up his wife’s death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference. More to the point, once it is acknowledged that the inference could be drawn, it was for the trier of fact to decide whether the inference should be drawn: R. v. Trochym [(2005) 186 C.C.C. (3d) 417], at para. 25. [paras. 86-87]

[138] Thus, there is no categorical legal rule against using after-the-fact conduct evidence to infer the accused’s intent. This jurisprudence clearly establishes that after-the-fact conduct evidence may be relevant to the issue of intent. Further, contrary to the submissions of Defence counsel, the cases indicate that the relevance of after-the-fact conduct to intent does not depend on the existence of further evidence (such as a body).

[139] It bears repeating that the determination of the relevance of after-the-fact conduct evidence is a case-by-case, “fact-driven exercise”: White (2011), at para. 42. As such, the statement in Teske above — that “[a]s a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death” — must be read as referring to the facts of that case: para. 86. It may not always be reasonable to infer that an individual who destroys a body after causing their death has done so to conceal the nature and extent of the injuries. The reasonableness of that proposition will depend on the record as a whole and the issues raised at trial.