Inferring Intent with After-the-Fact Conduct - Yan Ma

After-the-fact conduct evidence (“ACE”), also known as post-offence conduct evidence, is circumstantial evidence that “encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed.”[1] The admissibility of ACE to assess intent has historically been controversial.[2] In R v Calnen (“Calnen”),[3] the Supreme Court of Canada (“the Court”) resolved this controversy by establishing a central approach to assessing intent with ACE, which involves making a common-sense inference guided by context., The Court in Calnen also affirmed that, in cases of second degree murder, an accused’s attempts to destroy evidence may infer criminal intent.[4]Calnen thus marked an important development in the jurisprudence regarding the admission of ACE in criminal trials.

Background

In Calnen, the state accused Paul Trevor Calnen of murdering Reita Louise Jordan, his domestic partner. The accused testified that, during a fight, the victim died when she fell down the stairs. High on crack cocaine, he decided not to call the police. Instead, the accused hid the victim’s body in the woods and, upon learning of an ongoing police homicide investigation, dismembered and burned the body.

The accused’s hiding, dismembering, and burning the victim’s body became crucial at trial. In fact, the accused’s conduct after murdering the victim was the only evidence presented relevant to the mens rea for second-degree murder before the Supreme Court of Nova Scotia. The trial judge in Calnen instructed the jury to use the accused’s after-the-fact conduct to prove the accused’s intent for second-degree murder. On appeal, the Nova Scotia Court of Appeal (“the NSCA”) assessed whether ACE alone can prove the intent to commit murder. The NSCA concluded that, in the absence of information about where the injuries were in the body and the extent of such injuries, after-the-fact conduct could not support an inference that an accused intended to murder a victim.

Analysis

The Crown appealed the NSCA’s decision to the Court, which rejected the NSCA’s decision regarding ACE. Namely, the Court found that ACE alone could provide an inference of intent for murder. The Court, with Martin J. writing for the Majority, made two key observations regarding inferences from ACE. Firstly, inferences drawn from ACE must be reasonable “according to the measuring stick of human experience”.[5] Secondly, as ACE can serve different purposes, the trier of fact must be mindful of the context under which inferences can be drawn. For example, ACE showing that the accused in Calnen destroyed the deceased victim’s body served two purposes, proof of the key fact for the charge of improperly or indecently interfering with a dead body[6] as well as proof of the accused’s intent for second-degree murder.[7]

When ACE equally suggests the commission of two or more offences or suggests the commission of one offence and another innocent explanations and, furthermore, “it is not possible to choose between the available inferences as a matter of common sense, experience and logic”[8], the Court in Calnen found the admission of ACE to be pointless. In such a situation, the conduct fails to assist the jury in determining the accused’s level of culpability.[9]

However, not all cases involving the ACE in the context of multiple offences suggest liability for each offence equally. Applying common sense and human experience may in some cases may make the commission of one offence more likely than another. Case-specific factors, such as the specific nature of the ACE or differences between the accused’s explanation and their actual conduct, may also distinguish between the likelihood of offences.

Having considered the utility of common-sense inferences, the Court in Calnen rectified the misconception that ACE alone cannot infer intent to commit murder. The Court clarified that “there is no legal impediment to using after-the-fact-conduct evidence in determining the accused's intent.”[10] The unavailability of physical evidence “cannot…make the inference sought speculative”.[11] The Court pointed to R v Rodgerson,[12] where the Court reasonably inferred intent to commit murder from ACE showing destruction of a victim’s body without “rest[ing] upon the presence of other confirmatory … evidence”. [13] The Court in Calnen thus removed the NSCA’s unreasonable limitation on the range of inferences that can be drawn from ACE.

The Court also advised how to draw a reasonable inference from ACE, namely, by contextual analysis. By considering “how [ACE] fits with other evidence”[14] as well as “the nature of the conduct, what is sought to be inferred from the conduct, the party’s positions, and the totality of evidence”,[15] the trier of fact may consider whether the evidence suggests a chain of reasoning valid for that purposive inference and, if so, employ the inference.[16]

In applying the principles outlined above, the Court in Calnen concluded that the accused’s conduct did not equally suggest improper interference with a dead human body and second-degree murder. The accused had initially hidden the victim’s body in a remote location. Only after discovering the state’s homicide investigation did the accused dismember and burn the body. The Court in Calnen found that such conduct was “out of all proportion to either the [innocent] claim that this was an accidental death and/or to the offence of manslaughter”.[17] On the other hand, the nature of the accused’s after-the-fact conduct, in combination with other evidence, fit neatly with the Crown’s theory. In terms of “logic, human experience, and common sense” [18], the accused’s destruction of the victim’s body, hiding the nature and extent of injuries that would indicate recklessness that led to the victim’s death, reasonably supported an inference that the accused’s intended to commit second degree murder.

Conclusion

Prior to Calnen, criminal law in Canada lacked a clear approach to drawing inferences from ACE. In particular, the question of whether the requisite intent for second-degree murder could be inferred from the destruction of a body after the fact lacked a clear answer. Calnen resolved this question by deciding that such inferences were permissible if a trier of fact employed “common sense”[19] and “the measuring stick of human experience”[20] to draw inferences from ACE in the context of a particular set of facts. This approach has been adopted and confirmed in several Canadian appellate decisions.[21] As such, Calnen reaffirmed and entrenched the trier of fact’s primary role in applying common-sense to analyze factual contexts and advocated for a flexible approach to determining the admissibility of and inferences to be drawn from ACE.

[1] R v Calnen, 2019 SCC 6 at para 106 [Calnen]. [2] R v Rodgerson, 2015 SCC 38 [Rodgerson]. [3]Supra note 1. [4] Ibid at para 150. [5] Ibid at para 112. [6] Criminal Code, RSC 1985, c C-46, s 182(b) [Criminal Code]. [7] Ibid, s 235. [8] Calnen, supra note 1 at para 124. [9] Ibid at para 121. [10] Ibid at para 119. [11] Ibid at para 135. [12] Supra note 2. [13] Calnen, supra note 1 at para 132. [14] Ibid at para 134. [15] Ibid at para 135. [16] Ibid. [17] Ibid at para 149. [18] Ibid at para 145. [19] Ibid at para 139. [20] Ibid at para 112. [21] R v Whynder, 2020 NSCA 77 at para 120; R v Kionke, 2020 MBCA 32 at para 39; R v McMorris, 2020 ONCA 844 at para 149.