R. v. Wood, 2022 ONCA 87
[115] Well-established precedent governs our evaluation of the merits of this ground of appeal which alleges non-direction jury instructions about evidence of after-the-fact conduct.
[116] Our approach when asked to review the adequacy of jury instructions is functional. We examine the instructions as a whole to determine whether, in the context of the entire trial, those instructions enabled the jury, as the trier of fact, to decide the case in accordance with the law and the evidence admitted at trial. The jury must be properly, but need not be perfectly instructed. The overriding question is whether the instructions, taken as a whole, properly equipped the jury to decide the case, despite the absence of instructions now said to have been required but omitted in error: Calnen, at paras. 8-9.
[117] Final instructions to the jury need not follow a particular formula. The words used, the sequence followed, and related considerations fall within the discretion of the trial judge. What matters is the general sense which the words used must have conveyed, in all likelihood, to the minds of the jury: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30; Calnen, at para. 8.
[118] In addition to these general principles, a wealth of precedent describes what is necessary in final instructions about evidence of after-the-fact conduct.
[119] Evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. As circumstantial evidence, it allows the trier of fact to draw inferences. Those inferences are based on logic, common sense and human experience. The inferences must be reasonable according to the measuring stick of human experience and will depend on the nature of the conduct, the inferences the proponent seeks to have drawn from it, the positions of the parties and the totality of the evidence: Calnen, at paras. 111-112 (per Martin J., dissenting, but not on this point); R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at paras. 100-101.
[120] As with any item of evidence adduced at trial, evidence of after-the-fact conduct may be relevant to and admissible for a particular purpose or more than one purpose, but not for another or other purposes. In a jury trial, the trial judge should identify for the jury the permitted and prohibited purposes for which the evidence of after-the-fact conduct may be used and that or those for which it cannot be used. The language used to provide this instruction need not follow a particular formula: Calnen, at para. 113, per Martin J. (dissenting, but not on this point); McGregor, at para. 105.
[121] Typically, a jury instruction about the use of evidence of after-the-fact conduct in reaching a verdict has three components:
i. identification of the evidence as after-the-fact conduct;
ii. a description of the permitted use of the evidence; and
iii. a description of the prohibited use of the evidence.
See, Calnen, at para. 42; McGregor, at para. 106. Failure to provide an express instruction about the permitted and prohibited uses of this evidence is not always fatal: R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 65; Calnen, at para. 5.
[122] Where it is admitted, evidence of after-the-fact conduct may present some unique reasoning risks. It often consists of things done and said at a time that is temporally remote from the events that form the subject matter of the charge. This may make it more difficult to draw an inference about the prior conduct by invoking retrospective reasoning. The evidence may also appear more probative than it actually is. It may be inaccurate. It may encourage speculation, give rise to imprecise reasoning, and abet decision-makers in reaching immature conclusions. As an antidote, judges instruct jurors to take into account alternative explanations for the conduct before coming to any conclusion about the persuasive force of the evidence: Calnen, at paras. 116-117, per Martin J. (dissenting, but not on this point); McGregor, at paras. 107-108.
[123] Among the issues upon which evidence of after-the-fact conduct may be relevant and admissible is proof of an accused’s mental state or intent when engaging in conduct that forms the subject matter of the charge. This includes distinguishing between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). For example, an accused’s efforts at concealment may support inferences that:
i. the accused was acting unlawfully when they engaged in conduct that forms the subject matter of the charge; and
ii. the accused was attempting to hide the extent of the crime, for example, in a homicide case, the nature and extent of the deceased’s injuries, thus the force required to inflict them, and further, the state of mind that accompanied their infliction.
See, Rodgerson, at para. 20.
[124] A final point concerns the standard of proof.
[125] As an item or series of items of circumstantial evidence, this evidence is not subject to the criminal standard of proof except where it is the only evidence available to establish an essential element of the offence or the offence as a whole: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 39 (“White 1998”); R. v. Morin, [1998] 2 S.C.R. 345, at p. 354.
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