Her Majesty the Queen v. J.M.

(Ont.) (Criminal) (As of Right)

(Publication ban in case) (Publication ban on party)


Criminal law - Evidence, Admissibility, Charge to jury - Criminal law - Evidence - Admissibility - Charge to jury - Circumstantial evidence - After-the-fact conduct - Whether after-the-fact conduct evidence admissible - Whether trial judge failed to provide proper jury instruction on after-the-fact conduct.


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The respondent was convicted of two counts of sexual assault. At a voir dire, the Crown sought permission to lead as consciousness of guilt evidence certain after-the-fact conduct establishing that the respondent had failed to attend court on his original trial date. In response, the respondent sought to establish that he failed to attend because his ex-girlfriend had terminated her suretyship and he was experiencing emotional and financial difficulties. The trial judge did not allow the respondent to testify at the voir dire and, ultimately, he admitted the evidence. At trial, the jury was charged on the use it could make of the after-the-fact conduct evidence. The respondent successfully appealed his conviction. A majority of the Court of Appeal allowed the appeal and ordered a new trial on the basis that the trial judge did not conduct a proper evaluation of the evidence in deciding its admissibility, nor did he properly charge the jury on the use it could make of that evidence. Huscroft J.A., dissenting, would have dismissed the appeal.