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Hoist Upon Your Own Social Media

October 10, 2019

Accused’s Facebook posts and texts considered “after the fact conduct,” supporting murder conviction

In R. v. Café (2019 ONCA 775, no hyperlink available), the accused appealed his conviction at trial for first degree murder. Part of the evidence against him had been text messages that he had sent to friends after the victim’s death, in which he boasted about the murder, as well as Facebook posts containing photos of the victim’s body (taken before the police arrived at the scene) and rap lyrics relating to the death. The trial judge ruled that the texts, photos and rap lyrics could be considered by the jury as “after-the-fact conduct evidence” (which used to be called “evidence of consciousness of guilt”), specifically relating to whether the accused had planned the killing of the victim. Some of the materials were suggestive of a motive to kill the victim because he was a religious man, and suggested that the accused had therefore planned to kill the victim as a way to “mock God.” At trial the accused had testified that he did not plan the killing, but spontaneously did it in order to satisfy voices in his head which were instructing him to murder the victim.

The accused argued on appeal that the trial judge had erred in this ruling, but the Court of Appeal dismissed this argument. This was not just evidence that implicated the accused in the murder generally, but which had specific probative value towards the exact issues to which the jury had been directed—whether the accused had an established motive for violence toward the victim, and whether he had planned the killing. It had been open to the jury to conclude that the Facebook posts and texts were consistent with motive and the plan to “insult God,” rather than supporting the story regarding voices in the accused’s head. The trial judge had given specific instructions regarding the rap lyrics, which were full of disturbing images and profanity, and ensured that the jury knew to use them only to assess motive and planning, and not to reflect on the accused’s general character for violence.

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