Failure to attend trial was not presumptively after-fact conduct

Supreme court | Criminal Law | Appeals | Appeal from conviction or acquittal

Accused, charged with sexual assault of two complainants, was released on bail. After accused’s surety was revoked, he failed to attend scheduled start of trial. Accused was arrested on unrelated matter and, after first trial resulted in mistrial, second trial judge held voir dire on admissibility of failure to appear as post-offence conduct showing consciousness of guilt. Trial judge refused to allow accused to testify on voir dire and found evidence of his failure to appear was admissible, providing instructions to jury that it could only be considered as supporting inference of guilt if they decided that there was no other explanation for such conduct. Accused’s appeal was allowed, with majority finding that trial judge erred in conduct of voir dire and in content of instruction. Dissenting judge found that accused’s counsel’s summary of proposed voir dire evidence provided sufficient factual foundation for trial judge to make informed decision on relevance and that trial judge’s instruction was adequate as it reviewed competing explanations for conduct. Crown appealed. Appeal allowed. Failure to attend trial was not presumptively after-fact conduct but rather had to be assessed on case-by-case basis. Appeal would be allowed substantially for reasons of dissenting judge.

R. v. J.M. (2019), 2019 CarswellOnt 6228, 2019 CarswellOnt 6229, 2019 SCC 24, 2019 CSC 24, Abella J., Karakatsanis J., Côté J., Rowe J., and Martin J. (S.C.C.); reversed (2018), 2018 CarswellOnt 21543, 2018 ONCA 1054, J.C. MacPherson J.A., Grant Huscroft J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).

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