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General Principles

In the process of determining facts in a case the Judge may make inferences. These inferences must be logical conclusions drawn from the evidence before the judge at trial.[1]

They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.[2]

An inference, like a presumption, is a method of establishing fact without direct evidence. An inference is discretionary on the judge to make, but it must be supported by evidence.

Inferences are frequently used for the purpose of establishing the mens rea of an offence of intent, knowledge, or wilful blindness.

Inferences are necessary in establishing facts by way of circumstantial evidence, including circumstantial evidence doctrines of Recent Possession or similar fact evidence.

Inferences must be drawn from the facts which are proven. The inferred fact or proposition must be "deduced as a logical consequence from other facts...already proved or admitted."[3]

An inferred fact must be one that is "reasonably and logically drawn from a fact or group of facts established by the evidence."[4] An inference that does not properly flow from the established fact is mere conjecture and speculation.[5] Any rational conclusion must be based on evidence. The ability of a judge to make inferences should be limited, otherwise it would leave the crown in the position where they would have to disprove "every possible conjecture, no matter how irrational or fanciful".[6] The inference does not need to flow "easily" from those facts.[7]

Hodge's rule does not apply to determine the mens rea of an offence.[8]

The Court is entitled to apply "common sense" upon the consideration.[9]

Inference of State of Mind
There are generally well known inferences, that a judge will make regularly such as the inference "that one intends the natural consequences of one’s actions [in] any ... human activity, especially in light of the lack of evidence to rebut the inference."[10]

A judge cannot make a finding of improper motive on the part of a peace officer simply based on the officer's training, experience and resources.[11]

Equal Alternatives
Where the accused's post-offence conduct is "equally explained by" or "equally consistent with" two or more offences, there should be a "no probative value" instructions.[12]

The discovery of a item in a vehicle can create a presumption to infer possession by the driver.[13]

Evidence of Habit
Evidence of habitual or business practice can be sufficient to allow the inference that the events happened according to that practice.[14]

  1. R v Brodeur, 2014 NBCA 44 (CanLII)
  2. Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722
  3. R v Latif, [2004] O.J. No. 5891(*no CanLII links) at para 4
  4. R v Shields, 2014 NSPC 21 (CanLII), per Derrick PCJ, at para 106
    R v Morrissey, 1995 CanLII 3498 (ON CA), [1995] OJ No 639 (CA) at para 52
  5. Morrissey, ibid. at para 52
    R v McIver, 1964 CanLII 248 (ON SC), [1964] O.J. No. 835, at para 9
  6. R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303 Evans J.A. at p. 306 ("I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.")
    Caswell v Powell Duffy Associated Collieries Ltd., [1940] A.C. at p. 169 ("...inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.")
    R v Lukianchuk, [2001] BCJ No. 3000, 2001 BCSC 119 (CanLII), Romilly J. at paragraph 19: ("The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.")
  7. R v Katwaru, 2001 CanLII 24112 (ON CA), [2001] O.J. No. 209 at para 40
  8. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471
    R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC)
  9. R v To, 1992 CanLII 913 (BCCA)
    see also RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC) at paras 84 to 87 per LaForest J.
  10. R v Missions, 2005 NSCA 82 (CanLII) at para 21
    see also R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438 at para 64 (“a person usually knows what the predictable consequences of his or her actions are, and means to bring them about”")
  11. R v Brodeur, 2014 NBCA 44 (CanLII)
  12. R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, at para 28
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129 at pp. 145 and 147
  13. R v Nicholson, 2011 ABCA 218 (CanLII), at para 9 (“the finding of a prohibited item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused”)
    c.f. R v Lincoln, 2012 ONCA 542 (CanLII)
  14. R v Shams, 2017 MBCA 116 (CanLII) at para 5
    R v Thompson (2001), 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339, per Morden JA, at para 9 (Ont CA)
    Gerelus v Lim et al, 2008 MBCA 89 (CanLII) at para 64
    R v Ashmore, 2011 BCCA 18 (CanLII), per Frankel JA, at para 61, leave refused
    Hill, Strezos & Tanovich, Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada, 2013) (loose-leaf updated 2017, release 2) Part VI at ch 31:60.50 (online: WestlawNextCanada)

Inference of Guilt

See also: Circumstantial Evidence

A circumstantial case against an accused is proven by inference. However, the standard is different than a single factual inference. An inference made establishing the guilt of the accused can only be made where the trier-of-fact is satisfied beyond a reasonable doubt it is the only inference that can be made.[1]

There is never a burden upon the accused to establish facts which are inconsistent with guilt.[2]

  1. R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII), per Charron J, at para 33
  2. R v Pryce, 2014 BCCA 370 (CanLII) at para 10

Inference at Preliminary Inquiry

Conjecture and Speculation

The difference between conjecture and inference is not a clear one.[1]

The difference between an inference and mere speculation is considered a fine line to distinguish.[2]

A conjecture is a plausible conclusion that does not have a "compelling evidentiary foundation".[3] It is essentially a "guess".[4]

A court may not use speculative or conjectural conclusions.[5]

In a offence involving possession, a judge cannot reject a finding of possession by "raising a series of 'what-if' questions without providing any foundation in evidence". [6]

It is impermissible to speculate explanations that are "flatly contradicted" by the accused's own evidence.[7]

  1. Jones v Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.)
  2. See Watt's Manual of Evidence, 2011 (toronto, Carswell, 2011) at p.104 as cited in R v Balendran, 2012 ONSC 4016 (CanLII) at para 19
  3. R v Bampoe, 2013 ONCJ 355 (CanLII)
  4. Jones v Great Western Railway Co
  5. R v Fuller (1971), 1 N.R. 112 at 114, ("[t]he tribunal of fact cannot resort to speculative and conjectural conclusions")
    See also 1973 CanLII 196 (SCC), [1975] 2 SCR 121 at 123
  6. R v Jenner, 2005 MBCA 44 (CanLII), (2005), 195 CCC (3d) 364 (M.C.A.) per Monnin J.A.
  7. R v Grover, 2007 SCC 51 (CanLII), per The Court, at para 3

Statutory Inferences

There are certain provisions within the Code that permit inferences. Those include:

Adverse Inferences

In some instances, an adverse inference may be drawn from a party's failure to call certain witnesses that are in their power to call.[1]

It is essential that the party at issue actually had the power to call the witness.[2]

There are roughly two groups of inferences. First, the adverse inference will often be drawn where a party fails "to produce a witness reasonably assumed to be favourably disposed to that party"[3] Second, the inference may be drawn where the party failing to call has "exclusive" control over the witness.[4]

The party failing to call must be given the right to explain the failure to call the witness.[5]

The inference may only be drawn where there is no other reasonable explanation for the failure to call the witness.[6]

The inference should only be drawn where it is " in respect of an issue on which the evidentiary burden rests on the party".[7]

Given the risk of shifting the onus onto the defence. Such an inference should only be drawn with the "greatest of caution" when dealing with an inference against the defence.[8]

  1. R v Ellis, 2013 ONCA 9 (CanLII) at para 45
    R v N.L.P., 2013 ONCA 773 (CanLII), at para 58 - failure leads to “the most natural inference, that the party fears to do so,” and that the “witness, if brought, would have exposed facts unfavourable to the party”
  2. R v Jolivet, 2000 SCC 29 (CanLII), [2000] S.C.J. No. 28 at para, 27
    R v Lapensee, 2009 ONCA 646 (CanLII), [2009] O.J. No. 3745 at para 41
  3. R v Ellis at para 46
  4. Ellis at para 46
    McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at para 264
  5. Jolivet, at para 26; Wigmore on Evidence(Chadbourn Rev., 1979), Vol. 2, at para 290
  6. Ellis at para 48
    R v Lapensee, 2009 ONCA 646 (CanLII), 99 O.R. (3d) 501, at para 42
    R v Rooke 1988 CanLII 2947 (BC CA), (1988), 40 CCC (3d) 484 (BCCA), at pp. 512-513
  7. NLP at para 59
  8. Ellis at para 49
    R v Lapensee, at para 45
    R v Zehr, (1980), 54 CCC (2d) 65 (Ont. C.A.), at p. 68