Given the concerns about the use and misuse of after-the-fact conduct evidence, an instruction on this type of evidence should be given as a stand-alone instruction to the jury before discussing the elements of the offence.  However, when instructing the jury on the essential elements of the offence, the evidence of after-the-fact conduct must also be summarized as it relates to the element or issue in question, such as such as identity, intent, alibi, causation, etc.[2]  This summary of the after-the-fact evidence must remind the jury of the stand-alone instruction, the various explanations that have been given for the accused’s conduct, and the caution that they must apply before drawing any inferences from that evidence.

To be admissible, evidence of after-the-fact conduct by the accused must be logically relevant to a live, material issue in the case; it must not offend any other exclusionary rule of evidence and its probative value must exceed its prejudicial effect.[3]

If evidence of after-the-fact conduct by the accused is admissible in respect of an issue in the case, you must “specifically define the issue, purpose, and use for which such evidence is tendered and […] articulate the reasonable and rational inferences which might be drawn from it.” You must “expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use,” including any alternative explanations arising from the evidence. If the after-the-fact conduct cannot be used by the jury for a particular purpose, or is of no or limited probative value on a particular issue, you must specifically instruct the jury on this point.[4]

In R. v. Calnen, 2019 SCC 6,at paras 119-140, the Supreme Court of Canada clarified that in some cases “after-the-fact conduct evidence may be relevant to the issue of intent and may be used to distinguish between different levels of culpability.” This will depend on the record as a whole and the issues raised at trial.

As the trial judge, you should also “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. […] 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[.]”[5] See also R. v. Rodgerson , 2015 SCC 38, at paras 25-34.

In addition, it is important to instruct the jury not to draw an inference against an accused from the exercise of his or her right to silence in the face of police questioning: R. v. Turcotte, [2005] 2 S.C.R. 519. As well, the British Columbia Court of Appeal in R. v. Henry, 2010 BCCA 462, relying on R. v. Marcoux and Solomon, [1976] 1 S.C.R. 763, held that no inference may be drawn from an accused’s refusal to enter a police line-up.

If an alternative explanation has been offered by the accused for the after-the-fact conduct, or if the evidence gives rise to an alternative explanation, give the following instruction.

[6]  You must also consider alternative explanations for (NOA)’s after-the-fact conduct. You will recall that (specify, e.g. the accused’s testimony, statements, or other evidence that gives rise to an alternative explanation). Keep in mind that (NOA) does not have to prove anything. The Crown must prove each essential element beyond a reasonable doubt.

(Where the after-the-fact conduct is the making of false or misleading statements, such as a false alibi, give the instruction below in paragraphs [7] – [10].)

NOTE: This instruction should be given only when you have determined that there is some evidence of fabrication other than the statement itself.

[7]  You have heard evidence that (NOA) made false or misleading statements after the alleged offence (summarize evidence of false or misleading statements). Keep in mind, however, that not every false statement is a lie. For example, a false statement can result from confusion or poor memory. A lie is an intentional falsehood. You may disbelieve a person’s statement without concluding that the statement was a deliberate lie.

[8]  A finding that (NOA) lied (or participated in a lie) is not enough to support the inference of (specify inference). There must be other evidence showing that the purpose of the lie was to conceal (NOA)’s involvement in the offence charged.

[9] There is independent evidence upon which you may find—but do not have to find—that the false statement was fabricated by (NOA) (or with his/her participation).

(Review relevant evidence.)

[10] Unless you find that the false statement at issue was a lie that was told by (NOA) (or with his/her participation) in order to conceal (NOA)’s involvement in the offence charged, you must not rely on that statement to infer that (specify inference).

(Where the accused has raised a defence that might be affected by the after-the-fact conduct, give the instruction in paragraphs [11] and [12].)[8]

[11] (NOA) has raised the defence of (specify the defence that may be affected by the evidence of after-the-fact conduct, such as accident, self-defence, intoxication, or not criminally responsible by reason of mental disorder pursuant to s. 16 of the Criminal Code.)

[12] You may use the evidence you have heard of (NOA)’s alleged after-the-fact conduct when you are considering whether you have a reasonable doubt about (NOA)’s guilt based on that defence.

Explain how the jury may use that evidence, for example, by summarizing the Crown and the defence positions.

Consider whether it may be necessary to remind jurors of the difference between circumstantial evidence and direct evidence. In addition, where the Crown’s case is made up entirely or substantially of circumstantial evidence, the jury should be instructed that it “cannot reach a verdict of guilty based on circumstantial evidence unless . . . satisfied beyond a reasonable doubt that (NOA)’s guilt is the only reasonable^[9] conclusion to be drawn from the whole of the evidence.” See Instruction 10.2.

[1] The term “consciousness of guilt” should not be used to describe post-offence conduct. Instead, use “evidence of post-offence conduct” or “evidence of after-the-fact conduct.” See R. v. White [1998], 2 SCR 72, at para 20.

[2] R. v. Calnen, 2019 SCC 6, at paras 113-150. See also R. v. Rodgerson, 2015 SCC 38, at paras 29-30.

[3] R. v. Calnen, 2019 SCC 6, at paras 107-110. See also R. v. White, 2011 SCC 13, at paras 31 and 36.

[4] R. v. Calnen, 2019 SCC 6, at para 113.

[5] R. v. Calnen, 2019 SCC 6, at para 118. The other leading cases on this point from the Supreme Court of Canada are R. v. Arcangioli, [1994] 1 S.C.R. 129, and R. v. White, [1998] 2 S.C.R. 72, and R. v. Rodgerson, 2015 SCC 38. 

[6] In cases where the conduct is disputed, include the bracketed words.

[7]  Insert bracketed words where appropriate.

[8] This instruction may have to be modified where evidence of after-the-fact conduct is led for the purpose of rebutting a defence for which the accused bears the onus of proof (e.g., automatism or mental disorder).

[9] Regina v. Griffin, 2009 SCC 28, at para. 33; R. v. Villaroman, 2016 SCC 33 at para. 32.

[10] R. v. White, [1998] 2 S.C.R. 72, at para 21.