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Digest: R. v. White

[2011] S.C.J. No. 13
2011 SCC 13

Court File No. 33464

Supreme Court of Canada

March 11, 2011
On appeal from the Court of Appeal for British Columbia, [2009] B.C.J. No. 2276..

R. v. White

[2011] S.C.J. No. 13

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Homicide -- Second degree murder -- Manslaughter -- Appeal by White from decision of British Columbia Court of Appeal dismissing his appeal dismissed -- Only live issue was whether White had requisite intent for second degree murder -- White argued that trial judge should have specifically instructed jury that evidence concerning the circumstances of his flight had no probative value -- A jury could legitimately infer that White’s lack of hesitation before fleeing after the gun was fired belied his claim that the shooting was accidental -- Evidence of such a failure was thus relevant to the question of whether he had the requisite intent for second degree murder -- Caution provided by judge was adequate.

Criminal law -- Procedure -- Trial judge's duties -- Charge or directions -- Inferences of guilt -- Intent -- Appeal by White from decision of British Columbia Court of Appeal dismissing his appeal dismissed -- Only live issue was whether White had requisite intent for second degree murder -- White argued that trial judge should have specifically instructed jury that evidence concerning the circumstances of his flight had no probative value -- A jury could legitimately infer that White’s lack of hesitation before fleeing after the gun was fired belied his claim that the shooting was accidental -- The caution was adequate to alert the jury to the risk associated with this evidence and to allow them to properly weigh the evidence -- Jury charge was adequate.

Criminal law -- Evidence -- Admissibility -- For limited purpose -- Prejudicial evidence -- Probative value -- Relevancy -- Methods of proof -- Circumstantial evidence -- Admissibility -- Inferences -- From conduct -- Appeal by White from decision of British Columbia Court of Appeal dismissing his appeal dismissed -- Only live issue was whether White had requisite intent for second degree murder -- White argued that trial judge should have specifically instructed jury that evidence concerning the circumstances of his flight had no probative value -- The principle that after-the-fact conduct could constitute circumstantial evidence of guilt remained good law -- To be admissible, such evidence had to be relevant to a live issue -- In this case, it would have been wrong for the trial judge to instruct the jury that this evidence had no probative value in determining intent.

Appeal by White from the decision of the British Columbia Court of Appeal dismissing his appeal. During a physical altercation, Matasi was shot by White. White immediately fled the scene, but was later apprehended by the police. White effectively conceded that he had shot Matasi unlawfully and was therefore guilty of manslaughter, and the only live issue before the jury was whether he had the requisite intent for second degree murder. The Crown sought to convince the jury that White’s conduct in the immediate aftermath of the gunshot was not reconcilable with the theory that the gun was fired accidentally. The Crown pointed out that there was no hesitation, no shock, no uncertainty on the part of White, just immediate flight. In his instructions, the trial judge reminded the jury that they could take into account White’s post-offence conduct but that they had to be careful. White was convicted. While the Court of Appeal found that the trial judge had erred, it decided that the error was so minor that it could not have influenced the jury’s verdict. White argued that the trial judge should have specifically instructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the question before the jury. He claimed that the evidence relied upon by the Crown was consistent with both manslaughter and second degree murder, and was therefore irrelevant to the only live issue in the case.

HELD: Appeal dismissed. The jury charge was adequate. The principle that after-the-fact conduct could constitute circumstantial evidence of guilt remained good law. To be admissible, such evidence had to be relevant to a live issue and it must not be subject to a specific exclusionary rule; it could also be excluded pursuant to the exercise of a recognized judicial discretion, such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value. Whether or not a given instance of post-offence conduct had probative value with respect to the accused’s level of culpability depended entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. The introduction of post-offence conduct for the purpose of establishing the accused’s consciousness of guilt carried a substantial risk of jury error. However, a limiting instruction was only appropriate when the evidence was not relevant to one or more live issues, was subject to a specific exclusionary rule or was explicitly found by the trial judge to be more prejudicial than probative. A jury could legitimately infer that White’s lack of hesitation after the gun was fired belied his claim that the shooting was accidental. Evidence of such a failure was thus relevant to the question of whether he had the requisite intent for second degree murder. This evidence was not tainted by the hallmark flaws associated with “demeanour evidence” so as to be irrelevant. The evidence of lack of hesitation prior to flight presupposed a normal range of reactions and not everyone would respond in that way, but divergence from that norm, though not determinative, was more consistent with an intentional shooting than an accident. Consequently, it would have been wrong for the trial judge to instruct the jury that this evidence had no probative value in determining intent. Given the context in which the statement was made, the trial judge’s statement was not an invitation to consider White’s act of flight as evidence of consciousness of guilt. By the time the trial judge was instructing the jury, the flight was merely collateral to other evidence upon which the Crown relied. The caution was adequate to alert the jury to the risk associated with this evidence and to allow them to properly weigh the evidence. Even if the jury charge was error-free, this would have been an appropriate case to apply the curative proviso, s. 686(1)(b)(iii) of the Criminal Code. Given that the flight itself was never put directly in issue by the Crown, and given that the trial judge correctly summarized the Crown’s position on this point, the effect of the error on the jury could only be characterized as trivial and insignificant.

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