In the case of R v Gough, there was no doubt that Mr. Gough unlawfully killed his ex-girlfriend. The question was whether it was first degree murder, thus planned and premediated, or whether it was manslaughter, on the basis that the accused did not intend to kill his ex. Part of answering that question required an assessment of how (and if) Mr. Gough’s post-incident conduct could be used to establish first degree murder as opposed to manslaughter.
Post-incident conduct is a form of circumstantial evidence, which means its admissibility in any given case will depend entirely on the context, and the reason for which the post-incident conduct is submitted as being relevant. The danger of post-incident conduct is that such evidence proves nothing directly. Instead it asks the judge or jury to draw a link between how the person acted after the event, and their mental intentions therefore at the time of the event. This is troubling, of course, given how different people are, and how differently people act. As an example, the “believe the victim” movement in sexual assault law stems from the fact that not all victims behave the same way after being sexually assaulted (e.g., some cry, some do not, some report immediately, others wait, some continue to go to class or work with their rapist after the assault, etc). There is no logic to it.
Historically, courts have not accepted post-incident conduct as evidence of its commission or its planning, and by extension, post-incident conduct was deemed generally to be inadmissible to determine the difference between manslaughter and murder. Until the Gough case.
The deceased and Mr. Gough shared two children and were separated. Shortly after 8:00 a.m. on February 23, 2015, Mr. Gough and the deceased exchanged messages and spoke on the phone. This was a school day. The deceased would take the children to school and return home around 9:00 a.m. Mr. Gough advised he would drop off a skating form for one of the children at school that day. He told the deceased to look in the basement for the helmet. Mr. Gough then decided he would drop the form off before school started, and asked his girlfriend if she wanted anything from Tim Hortons. His girlfriend noted he was wearing a Blue Jays jacket. On the way to school, Mr. Gough realized he’d forgotten the form. The deceased lived near the school, and he went to the deceased’s home to speak with her.
Forensic evidence determined that the victim had been hit in the head 8-10 times and stabbed in the back 24 times. At trial, Mr. Gough’s evidence was that he’d gone to see the deceased to talk, and when she let him in the home, he asked several times whether she was seeing someone. Eventually the deceased admitted she was. She explained that if the person she was seeing got a new job elsewhere, she might move away with him and take the children with her. The appellant asked her how he would see the children if the deceased moved away. She replied that how he would see the children was his problem. Then she laughed.
When the deceased made the comment about moving away with the children, Mr. Gough said he “snapped”. He did not intend to kill the deceased. Overcome with emotion because of a previous experience with a former spouse moving away and taking their child with her, he hit her several times on the head with a fish bonker. She fell down the stairs to a landing. There, he hit her several times again, and she fell down the rest of the stairs to the basement floor. He saw blood on the walls and in the deceased’s hair. He put the fish bonker in his hoodie, walked back upstairs and left the house. He has no memory of holding a knife or of stabbing the deceased. He believed that he blacked out as had happened to him in the past.
The post-incident conduct at issue had several elements. One was video surveillance showing Mr. Gough at a Tim Hortons. Prior to entering the Tim Hortons, he removes his sweatshirt. Inside, he washes his face and hands. Another was the fact that he then went to his brother’s home and changed his clothes. Yet another was the fact that Mr. Gough sent two texts to the deceased asking whether she had found a hockey helmet for the skating trip and explaining that he had dropped off the skating form at the school. He testified that he sent the first text because he wasn’t sure whether the deceased was dead and the second, by which time he assumed she was dead, to cover his tracks. Lastly, he and his girlfriend dropped of the skating form at the school shortly after noon on the day of the murder. The Crown argued that all of the above was evidence that the murder was planned and deliberate.
The trial judge did not instruct the jury on its use of evidence of post-incident conduct, nor tell the jury that the evidence was of no value to them in their deliberations.
On appeal, defence counsel argued that the attendance at Tim Hortons, the messages about skating, and the delivery of the skating form, is evidence that is not relevant to either of the material issues at trial: Mr. Gough’s intent and whether the killing was planning and deliberate.
The Court of Appeal disagreed, taking the position that, at paragraph 58, that “there is no per se or bright line rule that evidence of post-incident conduct cannot be used to prove an accused’s state of mind during the commission of an alleged crime.” While repeating the dangers associated with relying on post-incident conduct, the Court of Appeal equally repeated the evidentiary tests applicable to post-incident conduct: is the evidence relevant to a material issue at trial?; is the evidence otherwise admissible?; and, does its probative value outweigh its prejudicial effect? If the answer is yes to all three, post-incident conduct may be considered by the trier of fact. As the post-incident conduct evidence in this case met the three evidentiary tests, it was open to the jury to use such evidence to make out first degree murder. Mr. Gough’s appeal from conviction was therefore dismissed.
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