Post-Offence Conduct: Investigative Strategy

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A police investigation of a crime may explore three stages of an offender's conduct: pre-offence activity, the offence itself, and post-offence activity. The first stage includes the elements involved in planning the crime while the second stage represents the actus reus of the crime. When examining the third stage, however, it is important to note that there are four unique factors that encompass this aspect of the investigation. First, the offence has to be defined as "ended" in order for this stage to be initiated. Second, there must be an understanding that post-offence conduct may include numerous acts. Third, the time period for this stage is potentially wide-ranging time, bordered by the end of the crime and conclusion of the trial. Fourth, the conduct included in this stage of investigation may include a response to police interrogation and, as such, it is the only stage that includes structured, formal police questioning. Employing these four above factors, this paper explores the contemporary case law that governs the admissibility of post-offence conduct at trial.

The concept of "post-offence conduct" is a formal legal term defined by the Supreme Court of Canada (S.C.C.), in R. v. White (1998). (1) It replaced the traditional term "consciousness of guilt" for clarity purposes due to the fact that the S.C.C. believed that "consciousness of guilt" misled juries and undermined the presumption of innocence. (2) Despite the language change, however, the basic concept remained the same and, according to the Courts, post-offence conduct is defined as the offender's conduct after a crime that circumstantially infers guilt by proving at least one fact-in-issue. (3) It does not refer to all of the …