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 accused's conduct. Instead, only the behaviors and acts relevant to the crime qualify as post-offence conduct. (4) A further analysis of Court opinions indicates that there are four definitional elements that comprise post-offence conduct:
i) the conduct must emerge from the accused and he or she must be the source of the evidence;
ii) the conduct must occur after the actus reus of the crime concludes;
iii) the conduct must be synonymous with circumstantial evidence; (5) and
iv) the circumstantial evidence must be relevant to one specific offence. (6)
The general rule of admissibility resembles the definition that, "the conduct of an accused person, that occurs after a crime, is admissible evidence if one condition is met--only when it provides circumstantial evidence of guilt." (7) Post-conduct admissibility depends on two elements: (i) it must be circumstantial evidence by nature, and; (ii) it must be relevant to the offence by forming one logical conclusion of proof of at least one fact-in-issue.
The S.C.C., in R. v. White (1998) (8), provided a sample list of concrete examples that constitute post-offence conduct and are typically admissible under the general rule of post-offence conduct. These include:
i) flight from a crime scene;
ii) flight from the jurisdiction of a crime scene;
iii) resistance to, or attempt to resist arrest;
iv) failure to appear at trial; or
v) acts of concealment including changing one's appearance, hiding or disposing of evidence, and deception such as lying or assuming a false name.
It must be noted that this list is non-exhaustive and includes only common examples. The types of concrete circumstantial evidence that constitute post-offence conduct may include a variety of additional behaviours. This paper examines a number of legal decisions related to post-offence conduct within an investigative strategy.
INVESTIGATIVE STRATEGY FRAMEWORK
Discovering multiple post-offence conduct behaviours is one of several goals of an investigative strategy. The post-offence time period varies but is generally defined as commencing with the end of the actus reus and concluding with the end of the trial. …