Case information

Criminal law — Charge to jury — After-the-fact conduct — Evidence of accused’s after-the-fact conduct adduced at trial — Whether the trial judge properly instructed the jury on the use of after-the-fact conduct — Whether the Court of Appeal erred in holding that the trial judge was required to tell the jury, in his after-the-fact conduct instruction, that the after-the-fact conduct evidence relating to a third party pointed equally to the third party being the perpetrator of the murders — Whether the decision of the Court of Appeal is a novel and problematic expansion of the law governing instructions on after-the-fact conduct, one which is not supported by the Supreme Court of Canada’s jurisprudence.

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The respondent’s convictions arose out of a fatal drug rip off. The victims were two large scale marijuana dealers. The victims were shot dead shortly after their arrival at a remote location. A short time later, Mr. Paul was shot and survived. Four individuals were involved in the drug transaction from the sellers’ side — the respondent, Mr. Boyle, Mr. Belair, and Mr. Paul. The post offence conduct evidence related to the disposal of the bag with the guns and other items in the river, and the burning of the clothes at the farm of Mr. Belair’s sister. After a trial by judge and jury, the respondent was convicted of two counts of first degree murder, and one count of attempted murder while using a firearm. The Court of Appeal held that the errors made by the trial judge in instructing the jury, particularly on the issue of the after-the-fact conduct, are sufficiently serious that these verdicts cannot stand. The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial.