R. c. St-Jean, 2025 QCCA 178
[64] Dans l’arrêt Tshilumba, la Cour relève la conclusion qui découle de l’arrêt Calnen selon laquelle « la preuve relative au comportement après le fait de l’accusé peut être pertinente pour trancher la question de l’intention et peut servir à étayer une distinction entre divers degrés de culpabilité »[20].
[65] Dans l’arrêt McGregor[21], le juge Watt de la Cour d’appel de l’Ontario résume succinctement les principes applicables :
[102] To be receivable, evidence of post-offence conduct must be relevant, material and not offend any other exclusionary rule of evidence, including the requirement that its probative value exceed its prejudicial effect: Calnen, at para. 107. Since receivability falls to be decided on this principled basis, no per se rule confines the answer to the receivability issue in any case. No prefabricated rule imposes a label of “always relevant” or “never relevant” when evidence of post-offence conduct is proposed for use in establishing a particular fact or issue: Calnen, at para. 119. So, for example, no legal impediment bars use of evidence of an accused’s post-offence conduct in determining his or her state of mind, and thus in distinguishing between or among different levels of culpability: Calnen, at para. 119; R. v. White (1998), 1998 CanLII 789 (CSC), 36 O.R. (3d) 223, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, at para. 32; R. v. White, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, 2011 SCC 13, at para. 42; R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, 2015 SCC 38, at para. 20.
[66] La jurisprudence est claire : le comportement après le fait est une preuve qui, selon les faits du dossier, peut être pertinente afin d’aider le jury à décider si le meurtre perpétré est un meurtre au premier degré ou au deuxième degré.
[67] J’examine trois décisions de la Cour d’appel de l’Ontario sur lesquelles se fonde le poursuivant et qui soutiennent cette orientation, mais particulièrement dans un contexte où il existe une preuve de l’association continue entre les coaccusés après la commission d’un meurtre, une preuve pertinente et admissible pour déterminer si le meurtre commis est un meurtre au premier degré[22]. La preuve de l’association entre les coaccusés permet d’étayer une inférence que les événements se sont déroulés exactement selon le plan qui avait été préparé.
[68] Dans l’arrêt S.B.1[23], le juge en chef Strathy se livre à une exégèse rigoureuse de la jurisprudence[24] et je reproduis deux paragraphes qui exposent bien son raisonnement :
[92] Finally, in R. v. Aravena, [2015] O.J. No. 1910, 2015 ONCA 250, 333 O.A.C. 264, at paras. 125-130, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 497, 2016 CarswellOnt 5400, Doherty and Pardu JJ.A. held that the trial judge properly instructed the jury that it could consider that the accused was elated and excited after the killings in deciding whether he committed a planned and deliberate murder. The accused argued his post-offence conduct had no probative value concerning the degree of culpability for the homicides, because it was equally consistent with guilt of manslaughter, second degree murder and first degree murder. Doherty and Pardu JJ.A. disagreed. They explained that the accused’s happiness suggested a number of logical possibilities – namely, that he had obtained his goal, the events were not shocking but had unfolded according to plan, he knew about the plan and/or he aided the killers with knowledge of the plan: “[a]s a matter of logic and human experience, [the accused’s] conduct after the killing was relevant to whether he was a party to a planned and deliberate murder”: at para. 130. See, also, R. v. Khan, [2007] O.J. No. 4383, 2007 ONCA 779, 230 O.A.C. 174, at paras. 3-5.
[…]
[113] The trial judge’s use of the post-offence conduct in this case was similar to the use made of such evidence to infer planned and deliberate murder in the cases I have discussed. Like MacKinnon’s excitement and laughter, White’s flight without hesitation, Vorobiov’s failure to flee, and Aravena’s elation, the conduct was inconsistent with the theory advanced by the accused and more consistent with the inference urged by the Crown.
[Le soulignement est ajouté]
[55] The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining […] that person’s level of culpability. In other cases, “as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind”: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42; and R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 68-71. This court recently confirmed that evidence of after-the-fact conduct may assist a jury in distinguishing between different levels of culpability, including second degree and first degree murder: McGregor, at para. 102; R. v. Adan, 2019 ONCA 709, at para. 69, citing R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at para. 119, per Martin J. (dissenting, but not on this point); R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 20; and R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20.
[56] In MacKinnon, at para. 15, Doherty J.A. wrote that the after-the-fact conduct evidence adduced in that case, in the context of the evidence viewed in its entirety, supported the inference that the appellants “had done exactly what they had planned to do … commit a robbery and shoot Mr. Chow.” The same line of reasoning was utilized in R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 129-30, leave to appeal refused, [2015] S.C.C.A. No. 497. In both cases, evidence of after-the-fact conduct was left to the jury to consider on the issue of whether the murders were planned and deliberate. In this case, the Crown relied on some aspects of the appellant’s after-the-fact conduct for the same purpose.
[…]
[59] Relying on Aravena and MacKinnon, the appellant argues that his after-the-fact conduct was not sufficiently proximate in time to Mr. Burnett’s murder to have any probative value. I disagree. Although both cases involved conduct that occurred in the immediate aftermath of the offences, Aravena and MacKinnon do not limit admissibility to these circumstances. This court recently acknowledged in McGregor, at para. 107, that after-the-fact conduct is “often removed temporally from the event to which it is said to relate.” The probative value of the conduct derives from the logical inferences that may be drawn when situated in the context of a pre-existing motive and post-conduct pleasure in having accomplished the premeditated killing.
[Le soulignement est ajouté]
[70] Dans l’arrêt Atienza[26], la décision la plus récente traitant de cette question, le juge Copeland résume ce corpus jurisprudentiel :
[92] Immediate flight by two accused persons from the scene of a crime together, and continued association on good terms after an offence may be probative of planning and deliberation. In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A., writing for this court, held that flight together from the scene of a shooting, laughing together after the fact, and disposing of evidence could support the inference that the two accused had “done exactly what they planned to do, that is, enter the club, commit a robbery and shoot [the victim]”: at paras. 14-15. This court has recognized other circumstances in which the conduct of an accused after an offence may be relevant to planning and deliberation: see R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 128-130; R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at paras. 55-56, 59. As noted above, the assessment of relevance for any particular inference from post-offence conduct is always a fact-specific exercise.
[93] In this case, in the context of the association between the appellant and Ms. Phan by phone and text before the shooting, their joint presence at the scene of the shooting, and their joint flight from the scene, their continued association on good terms after the shooting was, as the trial judge instructed the jury, some evidence which: “could support an inference that they remained friendly because they had done what they planned to do at the scene and neither of them was caught off guard by an unexpected shooting.”
[94] It is important to bear in mind the other evidence which the jury was entitled to consider in relation to planning and deliberation. This included evidence of motive or animus against Mr. Williams on the part of both the appellant and Ms. Phan; the phone and text communications between the appellant and Ms. Phan in the afternoon and evening leading up to the shooting; that firearms were brought to the scene; that the shooting happened very shortly after the arrival of the appellant on the scene; and whether the forensic evidence was consistent with Mr. Williams being shot by two shooters acting in tandem. In this context, the association between the appellant and Ms. Phan before (by phone calls and texts), during (both present at the scene of the shooting), and after the shooting was a piece of circumstantial evidence that could be weighed along with the rest of the evidence as relevant to planning and deliberation. The evidence of two people arguably acting in concert, as shown by their communication and association before, during, and after the shooting, on good terms throughout, is some evidence which, taken together with all of the evidence, could provide support for an inference of planning between the appellant and Ms. Phan.
[95] The existence of explanations other than guilt for the post-offence association between the appellant and Ms. Phan did not render that evidence as having no probative value. It was for the jury to assess the evidence of the post-offence association in the context of all of the evidence, and consider what inference, if any, to draw from it in the context of any explanations: Calnen, at para. 112.
[Le soulignement est ajouté]
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