Circumstantial Evidence

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General Principles

See also: Inferences

Circumstantial evidence refers to any evidence from which one or more inferences are to be drawn to establish material facts.[1]

While there is no burden to prove every piece of evidence on a standard of beyond a reasonable doubt, in order to convict on a circumstantial case, a judge must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is one of guilt.[2]

Circumstantial evidence may be used to support the inference of innocence as well as guilt so long as the probative value outweighs prejudicial effect and it is not given undue weight.[3]

Examples of circumstantial evidence:

  • motive (past hostility to Victim)
  • opportunity (including exclusive opportunity)
  • means, capacity and skills
  • post-offence conduct (flight, false alibi, destruction of evidence)
  • knowledge and state of mind
  • habit[4]
  • disposition for violence by victim

Inference vs Speculation
Circumstantial evidence is based on reasoning and inference-drawing through probability.[5] The judge must apply logic, common sense and experience to the evidence. They must consider the inherent probabilities and improbabilities, frequently eliminating the possibility of coincidence.[6]

The judge in his or her analysis must "separate inferences from speculation".[7]

Strength of Inferences to Establish a Fact
The rule of circumstantial evidence does not apply to each piece of evidence but rather only the totality of the evidence.[8]

A conclusion cannot be found without evidence, which is to say that it cannot be speculation.[9]

The strength of the inference made from circumstantial evidence depends on the relationship between the circumstantial evidence and the rest of the evidence.[10]

Proof by circumstantial evidence requires consideration of the evidence as a whole and not in part.[11]

The strength of the inference to be drawn from a single piece of circumstantial evidence depends on it context amongst all the other evidence.[12]

The whole of all the evidence may be more compelling than the sum of its parts.[13]

Juries
A judge does not need to give special instructions for circumstantial evidence.[14]

There is also no need to explain circustantial evidence in any sort of formulaic manner. It is sufficient just to use the language of proof beyond a reasonable doubt.[15]

Types of Evidence
Evidence of prior violence by the victim, including threats, can be relevant circumstantial evidence to establish reasonableness of an apprehension of harm and could not otherwise protect themselves from harm.[16]

Drug paraphernalia found with drugs can be relevant to support the inference of knowledge of the nature of the drugs, participation in drug dealing, and specific plans of dealing.[17]

Fingerprint evidence can infer that the person who the fingerprint matches touched or held the object it was found on. It is other evidence that will determine the time and place that the object was touched or held.[18]

  1. see Atlee, 2010 ONCJ 72 (CanLII), at para 14
    see also Watt's Manual of Criminal Evidence ss. 9.01
    R v Campbell, 2001 CanLII 7064 (ON CA), at paras 10 and 11
    R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, by McLachlin C.J.C. and Bastarache J, at para 89 (Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred")
  2. Griffin, 2009 SCC 28 (CanLII) at para 33
    R v Ngo, 2009 BCCA 301 (CanLII) at para 53
  3. R v SCB, 1997 CanLII 6319 (ON CA), (1997), 104 O.A.C. 81 (CA) at para 33 to 36
  4. R v Pilon, 2009 ONCA 248 (CanLII), (2009) 243 CCC (3d) 109 (ONCA)
  5. R v Arp 1998 CanLII 769, [1998] 3 SCR 339 at p. 375
  6. FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, at paras 33-40, 47-8
    R v Yousif, 2011 ABCA 12 (CanLII), at para 5
  7. R v Allen, 2015 BCCA 299 (CanLII), at para 27, per Donald J.A.
  8. R v John, [1970] 5 CCC 63, aff'd at 1970 CanLII 199 (SCC), [1971] SCR 781
  9. R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303 (ONCA)
  10. See R v White, 1996 CanLII 3013 (ON CA), (1996), 108 CCC (3d) 1 (Ont.C.A.)
    R v Uhrig, 2012 ONCA 470 (CanLII)
  11. R v Stewart, 1976 CanLII 202 (SCC), [1977] 2 SCR 748
    R v Turlon, (1989) 49 CCC (3d) 186 (Ont. C.A.) (*no link)
  12. R v Leitch, [2010] O.J. No. 6240 (C.J.), aff’d 2012 ONCA 85 (CanLII)
    R v Sykes, 2014 NSCA 57 (CanLII), at para 43
  13. R v Nolet, 2010 SCC 24 (CanLII), at para 48
    R v Luc, [2007] O.J. No. 4210 (C.J.)(*no link) at para 36-37
    Sykes at para 43
  14. Griffin, supra at para 33 ("We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification...")
    R v Robert, 2000 CanLII 5129 (ON CA) at para 15
  15. R v Tombran, 2000 CanLII 2688 (ON CA), (2000), 142 CCC (3d) 380 at 392
    R v Fleet, 1997 CanLII 867 (ON CA), (1997), 36 O.R. (3d) 542, 120 CCC (3d) 457 (C.A.)
  16. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3
  17. R v Froese (1988) 44 CCC (3d) 1 (MBCA) (*no link)
  18. R v Mars, 2006 CanLII 3460 (ON CA), (2006), 205 CCC (3d) 376, per Doherty JA, at paras 19 to 24
    R v Pakula, 2017 ABPC 33 (CanLII)

Inference on an Ultimate Issue Establishing Guilt

It is usually put forward to establish a fact that can be used to suggest facts that, if established, would resolve a matter at issue.

In order for a judge to convict on only circumstantial evidence, the "circumstances must be consistent with guilt and inconsistent with innocence"[1]

Common Law Hodges' Rule
The original common law requirement of proof for a finding of guilt in circumstantial case is based on the rule in hodge’s case.[2] The Hodge's rule test states that guilt can only be found where the judge is "satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person".[3]

Hodge's rule does not apply to determine the mens rea (including the accused's intention) for an offence.[4]

The Hodge's rule is not the "inexorable rule of law in Canada". It is only one manner of phrasing the essential test of proof beyond a reasonable doubt.[5]

Hodge's rule should not be applied to test the accused's explanation for his acts.[6]

The modern rule of circumstantial evidence requires that before a conviction based on circumstantial evidence can be entered the trier-of-fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference from the proven facts.[7]

The reverse of the principle is also true, where "there is exculpatory evidence. One piece of exculpatory evidence might not be sufficient to raise a reasonable doubt but the cumulative effect of a number of pieces of exculpatory evidence may well do so."[8]

Cumulative Effect of the Evidence
The Court must look at the cumulative effect of the evidence and not in piecemeal.[9]

Some evidence may be explicable without guilt and it may relate to a necessary chain of proof, however, it must be viewed in the context of all the other evidence.[10]

Inference of Guilt is The Only Reasonable One
The judge must make inquiry into whether an inference of guilt is the only reasonable inference available on the facts, which requires consideration whether there are alternative inferences capable of raising a reasonable doubt.[11]

Inference
An inference is a deduction made from the evidence.[12]

Example: Presence in Vehicle
Evidence putting the accused in a vehicle in which it is established that someone from the vehicle committed an offence is not enough to establish guilt where there is evidence suggesting other persons in the vehicle could be responsible.[13]

Example: Fingerprints
The mere finding of fingerprints on a household item moved during a break and enter can be sufficient to establish guilt.[14]

Inference in Absence of Evidence
The court may consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. These possibilities "must be based on logic and experience applied to the evidence or the absence of evidence".[15] This means that the Crown may need to negative "reasonable possibilities", however, this does not extend to require the Crown to "negative every possible conjecture".[16]

It must be kept in mind however that as a rule the "absence of evidence is not evidence of absence".[17]

  1. R v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168
  2. Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136(*no link) per Baron Alderson regarding a case made entirely of circumstantial evidence, the court must be satisfied "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person"
    also considered in R v Linn 1994 CanLII 4643 (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305 at paras 13-15 and R v Munro, 2001 SKQB 138 (CanLII) at paras 13-14
    R v Trevor, 2006 BCCA 91 (CanLII) at para 12
    c.f. R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J, at p. 881
  3. Hodge's Case
  4. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471
    Cooper, supra at p. 881 ("It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.')
  5. R v Robert, 2000 CanLII 5129 (ON CA), at para 15
  6. Robert, supra
  7. R v Cooper
    Mezzo v The Queen, 1986 CanLII 16, [1986] 1 SCR 802 at para 12
  8. R v Moose, 2015 ABCA 71 (CanLII), at para 12
  9. Trevor, supra
    R v Smith, 2016 ONCA 25 (CanLII), per Watt J.A. at paras 81 to 82
  10. Smith, ibid. at para 81
  11. R v Garciacruz, 2015 ONCA 27 (CanLII)
    R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII), at para 33 ("The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways")
  12. R v Shields, 2014 NSPC 21 (CanLII) at para 105
    R v Latif, [2004] OJ No. 5891 (SCJ)(*no link) at para 4
  13. R v Bouzied, 2013 ONCA 276 (CanLII)
  14. e.g. R v Miller, 2016 BCCA 263 (CanLII)
  15. R v Villaroman, 2016 SCC 33 (CanLII) at para 37
  16. Villaroman, ibid. at para 37 to 38
  17. R v Piec, 2007 MBCA 138 (CanLII)

Motive

Motive is a form of ulterior intent that permits the inferential proof of other essential elements of the offence. Evidence of a motive to commit the offence is circumstantial evidence supporting a conviction.[1] Conversely, evidence of a lack of motive is circumstantial evidence supporting an acquittal. Evidence of a lack of motive is not the same as lack of evidence of a motive.[2]

Evidence that the accused and victim had a good relationship is not evidence of a lack of motive, but a lack of evidence of a motive.[3]

Evidence of motive goes to prove intent as well as the act.[4]

Evidence of insolvency or debt can be admitted to establish motive for an offence of theft, fraud or arson.[5]

Evidence of the accused previously threatening the victim is admissible to establish an animus and motive to harm the victim, an intent to kill, as well as narrative. It is not bad character evidence.[6]

In a murder case, evidence of a prior abuse that establishes an animus or motive to kill is admissible against the accused.[7]

  1. R v Griffin, 2009 SCC 28 (CanLII) -- statement of deceased suggests motive for murder
  2. R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821
  3. R v Ilina, 2003 MBCA 20 (CanLII)
  4. R v Cloutier, 1939 CanLII 26 (SCC), [1940] SCR 131
    R c Bari, 2006 NBCA 119 (CanLII)
  5. R v Portillo, 2003 CanLII 5709 (ON CA) - accused's possession of victim's property establish motive of theft for murder charge
  6. R v Cooper, 2004 BCCA 540 (CanLII) at paras 34, 35
  7. R v Chapman, 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont CA) at para 27
    R v Cudjoe, 2009 ONCA 543 (CanLII) at para 64
    R v Van Osselaer, 2002 BCCA 464 (CanLII), (2002), 167 CCC (3d) 225 (BC CA) at para 23, leave to appeal refused, [2002] SCCA No 444 (SCC)
    R v Batte, 2000 CanLII 5750 (ON CA), (2000), 145 CCC (3d) 449 (Ont CA) at paras 97 and 102

State of Mind

Evidence of an utterance by the deceased victim goes to the state of mind of the victim.[1]

A complainant's post-even demeanour or emotional state is admissible and may be used to support the credibility of the complainant's evidence of a sexual assault.[2]

  1. Bari c. R., 2006 NBCA 119 (CanLII)
  2. R v Woollam, 2012 ONSC 2188 (CanLII) at para 48
    see Murphy and Butt v The Queen, 1976 CanLII 198 (SCC), [1977) 2 SCR 603 at p. 617
    R v Boss, 1988 CanLII 190 (ON CA), (1988), 46 CCC (3d) 523 (Ont. C.A.)
    R v Varcoe, 2007 ONCA 194 (CanLII) at para 33
    R v Arsenault, 1997 CanLII 1069 (ON CA), [1997] O.J. No. 3977 (C.A.) at para 9
    R v Clark, 1995 CanLII 1474 (ON CA), [1995] O.J. No. 4036 (C.A.) at para 7

Means, Capacity and Expertise

Evidence of the accused in possession of the weapon of the offence at a time outside of the offence time is admissible to prove that the accused had the necessary means to commit the offence. Without further details it cannot be put to establish that he had the weapon of the assault or that he be convicted for the offence.[1]

Evidence of tools and gear in the possession of the accused consistent with the offence is evidence of expertise.[2]

  1. R v Backhouse, 2005 CanLII 4937 (ON CA), (2005) 194 CCC (3d) 1 (ONCA)
    R v Kinkead, 2003 CanLII 52177 (ON CA)
  2. R v Davison, 1974 CanLII 787 (ON CA), (1974), 20 CCC (2d) 424 (ONCA)

Opportunity

Where the accused is the last person seen with the victim is circumstantial evidence of opportunity.[1] However, opportunity alone cannot be sufficient to make the case, even when in combination with motive.[2]

  1. R v Stevens (1984), 11 CCC (3d) 318 (*no link)
  2. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168 ("evidence of motive alone would not be sufficient to base a conviction and coupling opportunity with motive in the absence of other evidence would not advance the case unless there were evidence of exclusive opportunity")

Exclusive Opportunity

Evidence that shows only a single person was present at the time of the offence and was otherwise capable of committing the offence, then it will be sufficient to prove identity of the culprit. The issue is whether the opportunity is truly "exclusive" and not simply a likely among several potential persons. This will often address factors such as who had access to the location of the offence as well as timing of events and each person's location during or near that time.

Evidence of opportunity that is not exclusive is akin to evidence of motive. It cannot be used as a form of corroboration.[1] However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.[2]

  1. R v Ferianz (1962), 37 C.R. 37 (Ont. C.A.) (*no link)(“Evidence of opportunity, unless it is exclusive opportunity, is on a somewhat similar footing as evidence of motive. Mere opportunity is not accepted as corroboration where corroboration is required or desirable....”)
  2. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168 ("where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice."); See R v Johnson 2004 NSCA 91 (CanLII)

Victim's Tendency for Violence

A history of threats by the victim to the accused to admissible for the purpose of establishing the reasonableness of the accused apprehension of harm and the accused's belief in no alternatives to the commission of the criminal acts.[1]

Evidence of tendency is even admissible where self-defence is not an available defence.[2]

  1. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3
  2. R v Sims, 1994 CanLII 1298 (BC CA)

Accused's Tendency for Violence

Details on the relationship between the victim and accused can provide "background and context that was essential to an accurate interpretation of the relevant events".[1]

Prior threats made by the accused to the victim is admissible to establish the accused committed the offence and the accused's state of mind.[2]

Evidence of prior bad acts may be admissible to establish motive or animus regardless how similar it is the allegations.[3]

  1. R v MacDonald, 2002 CanLII 14251 (ON CA) at para 35
  2. R v Fournier, 2000 BCCA 140 (CanLII)
  3. R v Chapman, 2006 CanLII 1178 (ON CA) at para 27

Form of Evidence

Demeanor
Demeanour evidence may constitute circumstantial evidence of guilty knowledge.[1] The judge should consider the nature and context of the observations, such as a person's natural display of nervousness common to interactions with police.[2]

Drug Purchase Calls
In many cases, drug purchase calls were found admissible as circumstantial evidence, a purpose of which it is not for the truth of its contents.[3]

DNA
Expert testimony of DNA evidence found upon an object will typically be considered accurate.

The defence challenge would more regularly be upon the possibility of accidental DNA transfer.[4]

See also Established Fields of Expert Evidence#DNA_Analysis, Continuity

  1. e.g., R v Goulart-Nelson, 2004 CanLII 32077 (ON CA), [2004] O.J. No. 4010 (C.A.) at para 14
    R v Morales, 2006 CanLII 19930 (ON CA), (2006), 81 O.R. (3d) 161 (C.A.), at paras 12, 14
  2. R v De Rojas, 2012 ONSC 3227 (CanLII) at para 88
  3. e.g. R v Cook, 1978 CanLII 399 (BC CA), (1978), 10 B.C.L.R. 84 at 86
    R v Lees, 2009 BCCA 240 (CanLII) at para 21
    R v Bjornson, 2009 BCSC 1780 (CanLII) at para 13
    R v Graham, 2013 BCCA 75 (CanLII) at para 36 - however there is some inconsistency see para 38
  4. e.g. R v Doan, 2013 BCCA 123 (CanLII) - defence argues accidental transfer

See Also

Case Digests