After-the-Fact Conduct Evidence in Murder Trials: What Ontario's Court of Appeal Said in R v George
When someone is charged with murder in Ontario, the Crown often relies on more than just the events of the alleged offence. Prosecutors regularly point to what an accused did afterward — fleeing the scene, making false statements to police, or failing to call for help — as evidence of guilt. This is called "after-the-fact conduct" evidence, and a recent decision from the Court of Appeal for Ontario serves as an important reminder that this type of evidence has real limits, even though courts have become more permissive about it in recent years.
Background: What Happened in R v George?
Melissa George was convicted of second degree murder after a jury trial in connection with the stabbing death of her uncle, Raymond Beaver, during a home invasion that she had helped organize. The person who likely did the stabbing was her co-accused boyfriend, Daniel Cavanagh. Ms. George's position at trial was that she had only expected Mr. Cavanagh and Mr. Beaver to fight — she denied knowing that Mr. Cavanagh had a knife or that anyone would be killed.
The Crown pointed to two things Ms. George did after the stabbing as evidence against her: she fled the scene without trying to help her uncle, and she initially lied to police about whether she had been at the house at all. The trial judge told the jury they could use this after-the-fact conduct to draw conclusions about her state of mind.
The Court of Appeal found those instructions were wrong, allowed the appeal, and ordered a new trial.
What Is After-the-Fact Conduct Evidence?
After-the-fact conduct evidence refers to actions taken by an accused after an alleged offence that the Crown says reveal something about their guilt or state of mind. Common examples include fleeing the scene, disposing of evidence, lying to police, or failing to render aid to a victim.
Courts have gone back and forth on how carefully juries need to be instructed about this type of evidence. For many years, the approach was cautious — particularly where the evidence was only being used to prove intent (what the accused meant to do) rather than to prove that they committed the act itself. The concern was that juries might too easily treat suspicious post-offence behaviour as proof of guilt, without considering innocent explanations like panic, fear, or shock.
In 2019, the Supreme Court of Canada relaxed that cautious approach in a case called R v Calnen. The majority held that after-the-fact conduct is simply another form of circumstantial evidence — presumptively admissible, and capable in the right case of supporting an inference of intentional killing or even of planning and deliberation. After Calnen, trial judges and Crown prosecutors took a noticeably more permissive approach to this type of evidence.
What George Tells Us: Admissibility Isn't Everything
George is a reminder that just because after-the-fact conduct evidence is admissible does not mean it can be used for any purpose. The jury still needs careful instruction about what specific conclusion they are permitted to draw from it — and what they must not use it for.
Here, the Crown's own position at trial was that Ms. George's flight and her lies to police were relevant only to prove one thing: that she had planned Mr. Beaver's death. Crown counsel had even acknowledged during pre-trial discussions that if the jury rejected the planning theory, Ms. George would likely be "facing manslaughter or nothing." But the jury was never told this. The instructions left open the possibility that they could use her after-the-fact conduct to find her guilty of second degree murder even if they didn't accept the planning theory — a conclusion that, on the evidence, wasn't logically supportable.
Justice Dawe held that the jury should have been told explicitly: if you are not satisfied that Ms. George planned Mr. Beaver's death, her after-the-fact conduct has no probative value on the question of whether she is guilty of murder rather than manslaughter.
The trial judge made a second error by going further and effectively directing the jury toward a particular inference. Borrowing language from an earlier Court of Appeal case, he told the jury that failing to render aid is "more consistent with intending or being reckless regarding the death of the person than not." Justice Dawe found this was inappropriate — it is the jury's job to decide what inference to draw, and a trial judge suggesting which inference they should draw risks taking that decision away from them.
A Note for Those Facing Murder Charges
One practically significant aspect of this decision is that Justice Dawe required a "no probative value" instruction — essentially, a direction telling the jury to disregard the after-the-fact conduct on certain issues — even though Ms. George never admitted she was guilty of manslaughter. The evidence simply made manslaughter such an obvious available conclusion that the jury had to be told: unless you find that the only reasonable inference from this after-the-fact conduct is that the killing was planned, it cannot help you decide whether the death was intentional.
This matters for anyone facing serious criminal charges. After-the-fact conduct evidence can be powerful and prejudicial. Without proper jury instructions, a jury might convict of a more serious offence — murder rather than manslaughter — based on a logical leap the evidence doesn't actually support. Effective trial counsel needs to identify this risk early, engage with the Crown and trial judge on how the jury will be instructed, and push back when those instructions don't adequately limit the jury's use of the evidence.
This decision should be read alongside R v Pierre, 2025 ONCA 589, a murder appeal allowed last year on a similar basis.
You can read the full George decision here: https://coadecisions.ontariocourts.ca/coa/coa/en/item/23952/index.do