R v SB – 2018 ONCA 807 (Strathy):

[66] As has been pointed out on many occasions, post-offence conduct evidence invokes retrospectant reasoning. The occurrence of a subsequent act, state of mind or state of affairs is used to infer the occurrence of a prior act, state of mind or state of affairs. Post-offence conduct is circumstantial evidence, used to infer the existence of a fact in issue from the accused’s post-offence conduct: see R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, per Watt J.A., at paras. 223-225; R. v. Adamson, 2018 ONCA 678, per Watt J.A., at paras. 55-68.

[67] Post-offence conduct evidence “is circumstantial evidence that may help the trier of fact determine the accused’s culpability for the crime”: R. v. Vorobiov, 2018 ONCA 448, per Laskin J.A., at para. 54. It is “generally admissible to show that the accused 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”: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 51.

[68] The probative value of post-offence conduct depends on the nature of the evidence, the issues in the case, and the positions of the parties: R. v. MacKinnon, at para. 14. Post-offence conduct is admissible where, as a matter of logic, common sense, and human experience, it has a tendency to help the trier of fact resolve a live factual issue and there is no exclusionary rule barring its reception. It is then for the trier of fact to determine whether the evidence relates to the offence charged and, if so, how much weight should be attached to the evidence: see R. v. Adamson, at paras. 60, 62.

[69] In R. v. MacKinnon, Doherty J.A. pointed out, at para. 14, that post-offence conduct may sometimes, as a matter of common sense and human experience, be capable of supporting an inference that the accused had a particular state of mind at the time of the offence.

[70] That said, “[n]ormally, post-offence conduct cannot help to determine the state of mind of an accused”: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 103; R. v. Adamson, at para. 63. That is because in many cases, post-offence conduct is equally consistent with different levels of culpability — for example, equally consistent with murder and manslaughter: see R. v. White, [1998] 2 S.C.R. 72; R. v. Angelis, at paras. 52-53. For this reason, great care must be exercised in using post-offence conduct to infer intent for murder: R. v. Arcangioli, [1994] 1 S.C.R. 129, at pp. 145-47.

[71] But there is no rule automatically preventing the use of post-offence conduct as proof of the level of an accused’s culpability: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 40, 42, per Rothstein J.; White (1998), at para. 32. Rather, the use of post-offence conduct for this purpose is governed by the principle of relevance: evidence of post-offence conduct is admissible if it is relevant and its probative value is not outweighed by its prejudicial effect.

[72] The case law, including decisions of this court, indicates that in circumstances similar to this case, post-offence conduct has been used to infer the intent to commit first degree murder. Where, based on logic and human experience, the evidence of post-offence conduct is more consistent with the inference advanced by the Crown than with competing inferences, it is relevant to and probative of the degree of culpability of the accused.
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[94] Post-offence conduct evidence must be assessed on a case-by-case basis bearing in mind the nature of the evidence, the issues at trial, and the positions of the parties. Therefore, as discussed above, some post-offence conduct may properly be relevant to one issue, but not relevant to another. Here, as I have noted, the two central issues were the identification of the parties to the plan and their level of culpability.

[95] The trial judge identified the elements of first degree murder: (a) the accused caused the victim’s death; (b) the accused caused the victim’s death unlawfully; (c) the accused had one of the states of mind required for murder; and (d) the murder of the victim was both planned and deliberate. On the issue of culpability for first degree murder as it related to TF and MW, the critical question before the trial judge was whether the killing was planned and deliberate. The communication between the accused prior to the killing indicated that there was a plan to do something, but not what that something was. The defence position was that the execution-style killing of Tyrone by SB was not part of the plan and was unanticipated. The Crown sought to use some of the post-offence evidence to refute this theory and to establish that the killing was planned and deliberate.
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[97] While these aspects of post-offence conduct were relevant to the issue of participation, they were not treated as central or determinative by the trial judge in his consideration of the separate issue of intent. The trial judge made it clear that it was the absence of expression of any surprise and horror or disbelief, shock, or outrage that removed any doubt that the purpose of the plan was to kill Tyrone.

[98] The question, then, is whether the trial judge could reasonably conclude that this aspect of the appellants’ post-offence conduct, viewed in light of logic and human experience and in the context of the evidence as a whole, was more consistent with a planned and deliberate killing than with an unplanned and accidental killing. In my view, he could reasonably come to that conclusion and did not err in using the evidence for that purpose.

[99] Consider the context. MW and TF professed to be close friends of Tyrone. There was independent evidence that they were close. Their good friend Tyrone was brutally executed in front of TF as a result of a turn of events that was allegedly wholly unanticipated. The very first text exchange between them, minutes after the murder, was from MW, “Yur dum [for bringing a witness].”

[100] And the response was not “I didn’t know that SB was going to kill him.” It was, essentially, “I didn’t bring the witness, Tyrone did.”

[101] In my view, it was open to the trial judge to conclude that this exchange, which centres on the appellants’ concern about a witness to the killing rather than on the horrific incident TF had just witnessed, was inconsistent with a spontaneous unplanned killing and consistent with a planned murder.