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mercredi 22 juillet 2015

Inferring intent from post-offense conduct: instructing the jury on how such evidence can be used


By Maxime Fournier

In R v Rodgerson, 2015 SCC 38, the Supreme Court addresses the issue of jury instructions in a trial where the accused’s post-offense conduct is presented as evidence to prove his intent to kill the victim.  This decision illustrates how after-the-fact conduct must be analyzed carefully when determining the intent of the accused.
 
Context
Jason Rodgerson [Accused] is charged with first degree murder for an event that occurred in 2008.  At trial, there was no dispute that the victim, Amber Young [Victim], had been killed by the Accused.  Her death occurred during an altercation that took place in the Accused’s home.
The pair had met for the first time the night before the tragic event, in a bar where they drank alcohol and consumed drugs.  Among those drugs was a pill of ecstasy the Victim gave to the Accused, telling him it was worth five dollars.  The Victim followed the Accused to his place, where she asked him repeatedly, though not aggressively, for the money she was owed for the pill.  After engaging in a consensual sexual activity, the Accused “lost interest in Ms. Young and suggested they return to the bar” (para. 12). According to the Accused, the Victim once again asked him for the money, to which he replied “What are you? Some kind of whore?”.  Thus began the altercation in which the Victim stabbed the Accused with a knife on multiple occasions.  After failing to escape, the Accused engaged in a fight during which he hit the Victim in the face and attempted to control her by getting on top of her.  While fighting to immobilize the hand in which she held the knife, the Accused pressed on the neck and face of the Victim with his arm.  She quickly passed out and died from suffocation.  Soon after, the Accused passed out too. 

The Accused woke up the next day at around noon.  It is then he realized the Victim was dead and made “extensive efforts to conceal [her] body and clean up the scene of her death” (para. 13).  Among other things, he buried her body in his backyard after pouring bleach on it, removed the blood-stained carpet and mattress, destroyed the Victim’s cellphone and attempted to clean all signs of the altercation using bleach. When the police came to his house a few days later, the Accused attempted to flee and was immediately caught and arrested.  During the police interview, he made false statements and suggested somebody else had killed the Victim.

During trial, all those facts were exposed to the jury.  The Accused claimed he acted in self-defence and did not intend to kill the Victim.  Additionally, defense counsel argued that the conduct of the Accused after the offense could not be used to prove his intent to kill.  The trial judge disagreed and instructed the jury that post-offense conduct could indeed be considered in deciding the issue of intent.  In his charge to the jury, he gave general cautionary instructions regarding the dangers associated with evidence of post-offense conduct.  The jury convicted the Accused of second-degree murder.

Before the Court of Appeal, both parties agreed that the Accused’s attempt to flee and mislead the police, though part of post-offense conduct, could not be used when determining whether or not the Accused had intended to kill the Victim.  The appeal by the Accused was allowed on the ground that the trial judge failed to give sufficient instructions to the jury regarding post-offense conduct evidence.  A new trial was ordered. 

Question
The sole issue before the Supreme Court relates to the charge to the jury concerning the use of post-offense conduct.  More precisely, how can such evidence be considered and how specific must the judge be when giving instructions to the jury?

Decision
The Court begins by clarifying a point of law worth mentioning: the jury is entitled to consider all evidence, including the post-offence concealment, as a whole.  Unlike what could be read in the Court of Appeal’s decision, a jury does not have to be satisfied by other evidence (namely, forensics) that signs of excessive force had existed before considering the post-offence conduct of the Accused.  In order to simplify the jury’s task, courts must avoid such evidentiary segregation (para. 23).

As for the evidence of post-offense conduct, in this case the attempt to conceal the body and traces of the altercation, the Court clearly states that it can be relevant to the trier of facts. However, such evidence can be misleading if its reasonable inferences are not appropriately explained to the jury. To better understand these subtleties, the Court explains at para 20: 

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.
The Court’s reasoning can be summarized as follows: if the Accused acted after the fact in order to conceal the fact that a crime occurred altogether, it could be inferred that he knew his behavior during the event was unlawful.  If he acted after the fact in order to conceal the extent of the crime committed, in other words to hide the degree of force he used against the Victim, it could be inferred that he had inflicted bodily harm which he knew was likely to cause death, hence committing the offence of murder.

As for the jury charge, the trial judge gave general instructions on post-offence conduct that were standard according to jurisprudence.  It is because of the specifics of this case that he erred by not explaining the nuances of the conclusions that could be inferred from the facts.  Because these inferences could easily be confused, the judge had a duty to explain them to the jury:

 [26] Throughout the charge, the trial judge repeatedly referred back to the evidence of concealment and clean-up in his instructions on the elements of the relevant offences and of Mr. Rodgerson’s defences. On each occasion, he provided the same type of generic instruction. He did not draw any distinction between using the concealment and clean-up evidence to evaluate whether Ms. Young died as a result of an unlawful act, and using it to evaluate Mr. Rodgerson’s intent. Each time, he simply instructed the jury that “[o]nce again you also have to consider the post offence conduct which I have previously outlined to you”, or words to that effect (A.R., vol. IX, at p. 119). On some occasions, the trial judge provided a brief factual summary of the relevant evidence, while on others he did not. At no point, however, did he assist the jury in understanding how it could use the concealment and clean-up evidence in determining whether Mr. Rodgerson had the requisite intent for murder. Nor did he explain how the inferential reasoning was different on this issue than on the question of whether Mr. Rodgerson had acted unlawfully.
[27] The jury was entitled to consider the concealment and clean-up evidence in respect of Mr. Rodgerson’s self-defence claim and whether he unlawfully killed Ms. Young. It was also entitled to consider this evidence in evaluating whether he had the requisite intent for murder. Regarding self-defence and unlawful killing, the relevance of the concealment and clean-up and the nature of the available inference was a matter of common sense: concealing the body and cleaning up the scene of Ms. Young’s death could be viewed as evidence that Mr. Rodgerson knew he had killed Ms. Young unlawfully and was acting to cover it up. Once the jury moved on to the issue of intent for murder, however, this simple inferential reasoning was no longer of any use. Rather, the limited relevance of this post-offence conduct on the issue of intent rested on the following, narrower inference: the jury might reasonably conclude that Mr. Rodgerson concealed Ms. Young’s body and cleaned up the scene of her death in order to conceal the nature and extent of her injuries and the degree of force required to inflict them.
[28] In the sections of the jury charge relating to the issue of intent, the trial judge failed to link the evidence of concealment and clean-up to the nature and extent of Ms. Young’s injuries and the force required to inflict them. Rather, his charge merely reiterated the existence of the evidence, and instructed the jury to consider it along with all the other evidence adduced at trial. This was a legal error. Having first used the concealment and clean-up evidence in a common sense manner based on clear and readily accessible inferences, there was a risk that the jury might continue to rely on the evidence in this same manner on the issue of intent. The failure to instruct the jury on the narrower basis for using the evidence created a risk that the jury might convict Mr. Rodgerson for murder based only on the broader inference that had previously been sufficient: that the concealment and clean-up pointed to a consciousness of guilt and a desire to prevent discovery of an unlawful killing. [our emphasis, italics in the original]
Disagreeing with the Crown’s position that closing submissions at trial had “filled the gaps” of the jury charge, the Court states that it is important in such a context to “hit the nail on the head”.  It is not enough to make “vague and oblique” mentions “scattered throughout a lengthy closing argument” (para. 36) or instructions.  The specific nature of the inferences which can be drawn in cases such as this one must be addressed directly if the confusion which might afflict the jury is to be dissipated. 

To read this decision in its entirety, click here.


Comment:
Such a specific explanation to the jury is not mandatory in all cases involving post-offense conduct.  It is only required when the circumstances justify it, and so the standard set by the jurisprudence still stands.  As Moldaver J. writes at para 34: 

The legal error in the jury charge was the failure to assist the jury in understanding the limited and somewhat nuanced relevance of the concealment and clean-up evidence on the issue of intent for murder.  This error is unrelated to the required caution on the dangers associated with post-offence conduct in general.  Correctly cautioning the jury in accordance with [R v White, [1998] 2 S.C.R. 72 and R v White, 2011 SCC 13] is therefore necessary, but not always sufficient.
It might be obvious to some, but we must remember when reading this case, and all cases involving after-the-fact conduct, that evidence relating to the so-called “consciousness of guilt” is only one piece of the puzzle.  We must be cautious when inferring conclusions from it.  As Weilar J.A. of the Ontario Court of  Appeal wrote: “[After-the-fact conduct] is only some evidence which is to be weighed with all of the other evidence by the trier of fact in deciding whether or not the guilt of the accused has been proved beyond a reasonable doubt.“  

We must not be hasty and conclude that post-offense conduct, when pointing to consciousness of guilt, should be the deciding factor unless circumstances make it so.  I can immediately think of two reasons for this: first, and as it was wisely pointed out by the trial judge in Peavoy: “It is often thought, sometimes erroneously, that the commission of a crime stamps its perpetrator with a psychological mark, a so-called consciousness of guilt which displays itself in later conduct. Sometimes however, those whom the law holds blameless engage in similar behaviour for any number of reasons.”  [our emphasis]  Although science is making progress, human behavior remains for the most part a mystery that cannot be explained beyond a reasonable doubt by logic alone.  This is particularly the case in unique and traumatic circumstances such as the ones in this case, and those who are blameless before the law might very well act as those who are not.

Second, whether someone behaved lawfully or unlawfully is a question of law to be determined by the courts.  The accused’s own opinion about his guilt of a crime – just like it would be for his liability in an accident – should not be the deciding factor when assessing if that person is legally guilty. Unless that person is learned in the law and behaves rationally even in the most traumatic of events, it cannot be inferred from one’s feeling of guilt alone, and his reaction to it, that he knew he was breaking the law, or that he was breaking the law in the first place.
 

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