In R. v. Staples, 2022 ONCA 266, April 1, 2022, the accused was convicted of murdering his father and sister (Bill and Rhonda). At his trial, the Crown led evidence that the accused was observed crying before the bodies of the two victims had been discovered.  Witnesses testified that this was unusual.  

On appeal, the accused argued that this evidence was inadmissible.

The Appeal was dismissed. The Court of Appeal indicated that the key witness concerning the appellant’s crying was the appellant’s ex-wife, who was intimately familiar with him and had a strong basis for believing that his demeanour was unusual. It had probative value in light of the evidence that the appellant had told his uncles Murray and Don Staples on Monday – the day before his crying was observed – that he did not know where Bill and Rhonda were, but they had said they were going away for a few days. After all, if his father and sister had taken a short trip, why would their absence provoke such a reaction in the appellant?” (at paragraph 40)

The Ontario Court of Appeal pointed out that “although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence. It may be admitted where a witness has a basis for believing that an accused’s demeanour was unusual” (at paragraph 38). 

The Court of Appeal concluded that “the evidence was properly admitted. It was open to the trial judge to find that this post-offence demeanour evidence had probative value in the context of the broader evidentiary picture and, in particular, the appellant’s statement to his uncles that Bill and Rhonda had gone away” (at paragraph 42).