Difference between revisions of "Circumstantial Evidence"

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{{LevelZero}}{{HeaderEvidence}}
 
{{LevelZero}}{{HeaderEvidence}}
 
==General Principles==
 
==General Principles==
<!-- -->
 
 
{{seealso|Inferences}}
 
{{seealso|Inferences}}
 
Circumstantial evidence refers to any evidence from which one or more inferences are to be drawn to establish material facts.<ref>
 
Circumstantial evidence refers to any evidence from which one or more inferences are to be drawn to establish material facts.<ref>
see ''R v Atlee'', [http://canlii.ca/t/28jdk 2010 ONCJ 72] (CanLII){{perONCJ|Thibideau J}}{{at|14}}<br>
+
see ''R v Atlee'', [http://canlii.ca/t/28jdk 2010 ONCJ 72] (CanLII){{perONCJ|Thibideau J}}{{atL|14|http://canlii.ca/t/28jdk }}<br>
 
see also Watt's Manual of Criminal Evidence ss. 9.01<br>
 
see also Watt's Manual of Criminal Evidence ss. 9.01<br>
''R v Campbell'', [http://canlii.ca/t/1f823 2001 CanLII 7064] (ON CA){{perONCA|Weiler JA}}{{ats|10 and 11}}<br>
+
''R v Campbell'', [http://canlii.ca/t/1f823 2001 CanLII 7064] (ON CA){{perONCA|Weiler JA}}{{atsL|10 and 11|http://canlii.ca/t/1f823#par10}}<br>
''R v Cinous'', [http://canlii.ca/t/51tb 2002 SCC 29] (CanLII), [2002] 2 SCR 3{{perSCC|McLachlin CJ and Bastarache J}}{{at|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")<br>
+
''R v Cinous'', [http://canlii.ca/t/51tb 2002 SCC 29] (CanLII), [2002] 2 SCR 3{{perSCC|McLachlin CJ and Bastarache J}}{{atL|89|http://canlii.ca/t/51tb}} (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")<br>
 
</ref>
 
</ref>
  
 
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.<ref>  
 
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.<ref>  
''R v Griffin'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}}{{at|33}}<br>
+
''R v Griffin'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}}{{atL|33|http://canlii.ca/t/23zqj}}<br>
''R v Ngo'', [http://canlii.ca/t/244x8 2009 BCCA 301] (CanLII){{perBCCA|Rowles JA}}{{at|53}}<br>
+
''R v Ngo'', [http://canlii.ca/t/244x8 2009 BCCA 301] (CanLII){{perBCCA|Rowles JA}}{{atL|53|http://canlii.ca/t/244x8}}<br>
 
</ref>
 
</ref>
  
 
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.<ref>
 
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.<ref>
''R v SCB'', [http://canlii.ca/t/6hkq 1997 CanLII 6319] (ON CA), (1997), 104 O.A.C. 81 (CA){{perONCA|Doherty and Rosenberg JJA}}{{ats|33 to 36}}</ref>
+
''R v SCB'', [http://canlii.ca/t/6hkq 1997 CanLII 6319] (ON CA), (1997), 104 O.A.C. 81 (CA){{perONCA|Doherty and Rosenberg JJA}}{{atsL|33 to 36|http://canlii.ca/t/6hkq#par33}}</ref>
  
 
Examples of circumstantial evidence:
 
Examples of circumstantial evidence:
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* [[Post-Offence Conduct|post-offence conduct]] (flight, false alibi, destruction of evidence)
 
* [[Post-Offence Conduct|post-offence conduct]] (flight, false alibi, destruction of evidence)
 
* knowledge and state of mind
 
* knowledge and state of mind
* habit<ref>''R v Pilon'', [http://canlii.ca/t/22v5v 2009 ONCA 248] (CanLII), (2009) 243 CCC (3d) 109 (ONCA){{perONCA|Doherty JA}}</ref>
+
* habit<ref>
 +
''R v Pilon'', [http://canlii.ca/t/22v5v 2009 ONCA 248] (CanLII), (2009) 243 CCC (3d) 109 (ONCA){{perONCA|Doherty JA}}
 +
</ref>
 
* disposition for violence by victim
 
* disposition for violence by victim
  
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''R v Arp'', [http://canlii.ca/t/1fqq7 1998 CanLII 769], [1998] 3 SCR 339{{perSCC|Cory J}}{{atp|375}}</ref>  
 
''R v Arp'', [http://canlii.ca/t/1fqq7 1998 CanLII 769], [1998] 3 SCR 339{{perSCC|Cory J}}{{atp|375}}</ref>  
 
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.<ref>
 
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.<ref>
FH v McDougall, [http://canlii.ca/t/20xm8 2008 SCC 53] (CanLII), [2008] 3 SCR 41{{perSCC|Rothstein J}}{{Ats|33-40, 47-8}}<br>  
+
''FH v McDougall'', [http://canlii.ca/t/20xm8 2008 SCC 53] (CanLII), [2008] 3 SCR 41{{perSCC|Rothstein J}}{{AtsL|33-40, 47-8|http://canlii.ca/t/20xm8#par33}}<br>  
''R v Yousif'', [http://canlii.ca/t/2fcg8 2011 ABCA 12] (CanLII){{perABCA|Slatter JA}}{{at|5}}<br>
+
''R v Yousif'', [http://canlii.ca/t/2fcg8 2011 ABCA 12] (CanLII){{perABCA|Slatter JA}}{{atL|5|http://canlii.ca/t/2fcg8}}<br>
 
</ref>
 
</ref>
  
 
The judge in his or her analysis must "separate inferences from speculation".<ref>
 
The judge in his or her analysis must "separate inferences from speculation".<ref>
''R v Allen'', [http://canlii.ca/t/gkbkr 2015 BCCA 299] (CanLII){{perBCCA|Donald JA}}{{at|27}}
+
''R v Allen'', [http://canlii.ca/t/gkbkr 2015 BCCA 299] (CanLII){{perBCCA|Donald JA}}{{atL|27|http://canlii.ca/t/gkbkr}}
 
</ref>
 
</ref>
  
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The strength of the inference to be drawn from a single piece of circumstantial evidence depends on its context amongst all the other evidence.<ref>
 
The strength of the inference to be drawn from a single piece of circumstantial evidence depends on its context amongst all the other evidence.<ref>
 
''R v Leitch'', [2010] OJ No 6240 (C.J.), aff’d [http://canlii.ca/t/fpw8m 2012 ONCA 85] (CanLII){{TheCourtONCA}}<br>
 
''R v Leitch'', [2010] OJ No 6240 (C.J.), aff’d [http://canlii.ca/t/fpw8m 2012 ONCA 85] (CanLII){{TheCourtONCA}}<br>
''R v Sykes'', [http://canlii.ca/t/g744j 2014 NSCA 57] (CanLII){{perNSCA|Farrar JA}}{{at|43}}<br>
+
''R v Sykes'', [http://canlii.ca/t/g744j 2014 NSCA 57] (CanLII){{perNSCA|Farrar JA}}{{atL|43|http://canlii.ca/t/g744j}}<br>
 
</ref>
 
</ref>
  
 
The whole of all the evidence may be more compelling than the sum of its parts.<ref>
 
The whole of all the evidence may be more compelling than the sum of its parts.<ref>
''R v Nolet'', [http://canlii.ca/t/2b8jp 2010 SCC 24] (CanLII){{perSCC|Binnie J}}{{at|48}}<br>
+
''R v Nolet'', [http://canlii.ca/t/2b8jp 2010 SCC 24] (CanLII){{perSCC|Binnie J}}{{atL|48|http://canlii.ca/t/2b8jp}}<br>
 
''R v Luc'', [2007] OJ No 4210 (C.J.){{NOCANLII}}{{ats|36-37}} <br>
 
''R v Luc'', [2007] OJ No 4210 (C.J.){{NOCANLII}}{{ats|36-37}} <br>
{{supra1|Sykes}}{{at|43}}<br>
+
{{supra1|Sykes}}{{atL|43|http://canlii.ca/t/g744j}}<br>
 
</ref>
 
</ref>
  
 
; Juries
 
; Juries
A judge does not need to give special instructions for circumstantial evidence.<ref> {{supra1|Griffin}}{{at|33}} ("We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification...")<br>
+
A judge does not need to give special instructions for circumstantial evidence.<ref>  
''R v Robert'', [http://canlii.ca/t/1fb32 2000 CanLII 5129] (ON CA){{perONCA|Sharpe JA}}{{at|15}}<br>
+
{{supra1|Griffin}}{{atL|33|http://canlii.ca/t/23zqj}} ("We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification...")<br>
 +
''R v Robert'', [http://canlii.ca/t/1fb32 2000 CanLII 5129] (ON CA){{perONCA|Sharpe JA}}{{atL|15|http://canlii.ca/t/1fb32}}<br>
 
</ref>  
 
</ref>  
  
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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.<ref>
 
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.<ref>
''R v Mars'', [http://canlii.ca/t/1mjp2 2006 CanLII 3460] (ON CA), (2006), 205 CCC (3d) 376{{perONCA|Doherty JA}}{{ats|19 to 24}}<br>
+
''R v Mars'', [http://canlii.ca/t/1mjp2 2006 CanLII 3460] (ON CA), (2006), 205 CCC (3d) 376{{perONCA|Doherty JA}}{{atsL|19 to 24|http://canlii.ca/t/1mjp2#par19}}<br>
 
''R v Pakula'', [http://canlii.ca/t/gxlb1 2017 ABPC 33] (CanLII){{perABPC|Semenuk J}}<br>
 
''R v Pakula'', [http://canlii.ca/t/gxlb1 2017 ABPC 33] (CanLII){{perABPC|Semenuk J}}<br>
 
</ref>
 
</ref>
Line 93: Line 95:
 
The standard of review of any instructions on the drawing of inferences of knowledge in a circumstantial case is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence".
 
The standard of review of any instructions on the drawing of inferences of knowledge in a circumstantial case is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence".
 
<ref>
 
<ref>
''R v Villaroman'', [http://canlii.ca/t/gsq3b 2016 SCC 33] (CanLII){{perSCC|Cromwell J}}{{at|55}} <br>
+
''R v Villaroman'', [http://canlii.ca/t/gsq3b 2016 SCC 33] (CanLII){{perSCC|Cromwell J}}{{atL|55|http://canlii.ca/t/gsq3b}} <br>
 
</ref>
 
</ref>
  
Line 103: Line 105:
 
In order for a judge to convict on only circumstantial evidence, the "circumstances must be consistent with guilt and inconsistent with innocence"<ref>
 
In order for a judge to convict on only circumstantial evidence, the "circumstances must be consistent with guilt and inconsistent with innocence"<ref>
 
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17] (SCC), [1987] 2 SCR 168{{perSCC|McIntyre J}}<br>
 
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17] (SCC), [1987] 2 SCR 168{{perSCC|McIntyre J}}<br>
''R v Griffin; R v Harris'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII), [2009] S.C.J. No. 28{{perSCC|Charron J}}{{at|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.")
+
''R v Griffin; R v Harris'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII), [2009] S.C.J. No. 28{{perSCC|Charron J}}{{atL|33|http://canlii.ca/t/23zqj}} (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.")
  
 
</ref>
 
</ref>
Line 109: Line 111:
 
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.<ref>
 
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.<ref>
 
''R v Cooper'', [1978] 1 SCR 860, [http://canlii.ca/t/1mkb1 1977 CanLII 11] (SCC){{perSCC|Ritchie J}}<br>
 
''R v Cooper'', [1978] 1 SCR 860, [http://canlii.ca/t/1mkb1 1977 CanLII 11] (SCC){{perSCC|Ritchie J}}<br>
''Mezzo v The Queen'', [http://canlii.ca/t/1ftrq 1986 CanLII 16], [1986] 1 SCR 802{{perSCC|McIntyre J}}{{at|12}}</ref>  
+
''Mezzo v The Queen'', [http://canlii.ca/t/1ftrq 1986 CanLII 16], [1986] 1 SCR 802{{perSCC|McIntyre J}}{{atL|12|http://canlii.ca/t/1ftrq}}</ref>  
  
 
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."<ref>
 
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."<ref>
''R v Moose'', [http://canlii.ca/t/ggcbj 2015 ABCA 71] (CanLII){{TheCourtABCA}}{{at|12}}<br>
+
''R v Moose'', [http://canlii.ca/t/ggcbj 2015 ABCA 71] (CanLII){{TheCourtABCA}}{{atL|12|[http://canlii.ca/t/ggcbj}}<br>
 
</ref>
 
</ref>
  
 
Inferences consistent with innocence do not need to arise from proven facts.<ref>
 
Inferences consistent with innocence do not need to arise from proven facts.<ref>
''R v Khela'', [http://canlii.ca/t/2260t 2009 SCC 4] (CanLII), [2009] 1 SCR 104{{perSCC|Fish J}}{{at|58}}<br>
+
''R v Khela'', [http://canlii.ca/t/2260t 2009 SCC 4] (CanLII), [2009] 1 SCR 104{{perSCC|Fish J}}{{atL|58|http://canlii.ca/t/2260t}}<br>
see also ''R v Defaveri'', [http://canlii.ca/t/gdsl5 2014 BCCA 370] (CanLII), 361 B.C.A.C. 301{{perBCCA|Lowry JA}}{{at|10}}<br>
+
see also ''R v Defaveri'', [http://canlii.ca/t/gdsl5 2014 BCCA 370] (CanLII), 361 B.C.A.C. 301{{perBCCA|Lowry JA}}{{atL|10|http://canlii.ca/t/gdsl5}}<br>
''R v Bui'', [http://canlii.ca/t/g8sgp 2014 ONCA 614] (CanLII), 14 C.R. (7th) 149{{perONCA|Simmons JA}}{{at|28}}<br>
+
''R v Bui'', [http://canlii.ca/t/g8sgp 2014 ONCA 614] (CanLII), 14 C.R. (7th) 149{{perONCA|Simmons JA}}{{atL|28|http://canlii.ca/t/g8sgp}}<br>
 
</ref>
 
</ref>
 
To require proven facts wrongly places the burden upon the accused to prove what happened rather than simply raise a doubt.<ref>
 
To require proven facts wrongly places the burden upon the accused to prove what happened rather than simply raise a doubt.<ref>
''R v Villaroman'', [2016] 1 SCR 1000, [http://canlii.ca/t/gsq3b 2016 SCC 33] (CanLII){{perSCC|Cromwell J}}{{at|35}}<br>
+
''R v Villaroman'', [2016] 1 SCR 1000, [http://canlii.ca/t/gsq3b 2016 SCC 33] (CanLII){{perSCC|Cromwell J}}{{atL|35|http://canlii.ca/t/gsq3b}}<br>
 
</ref>
 
</ref>
  
Line 127: Line 129:
 
The Court must look at the cumulative effect of the evidence and not in piecemeal.<ref>
 
The Court must look at the cumulative effect of the evidence and not in piecemeal.<ref>
 
{{supra1|Trevor}}<br>
 
{{supra1|Trevor}}<br>
''R v Smith'', [http://canlii.ca/t/gmw9r 2016 ONCA 25] (CanLII){{perONCA|Watt JA}}{{ats|81 to 82}}<br>
+
''R v Smith'', [http://canlii.ca/t/gmw9r 2016 ONCA 25] (CanLII){{perONCA|Watt JA}}{{atsL|81 to 82|http://canlii.ca/t/gmw9r#par81}}<br>
 
</ref>
 
</ref>
  
 
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.<ref>
 
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.<ref>
{{ibid1|Smith}}{{at|81}}<br>
+
{{ibid1|Smith}}{{atL|81|http://canlii.ca/t/gmw9r}}<br>
 
</ref>
 
</ref>
  
 
; Inference of Guilt is The Only Reasonable One
 
; 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.<ref>
+
The judge must make an 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.<ref>
 
''R v Garciacruz'', [http://canlii.ca/t/gg0n5 2015 ONCA 27] (CanLII){{perONCA|Rouleau JA}}<br>  
 
''R v Garciacruz'', [http://canlii.ca/t/gg0n5 2015 ONCA 27] (CanLII){{perONCA|Rouleau JA}}<br>  
''R v Griffin'', [2009] 2 SCR 42, [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}}{{at|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")<br>
+
''R v Griffin'', [2009] 2 SCR 42, [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}}{{atL|33|http://canlii.ca/t/23zqj}} ("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")<br>
 
</ref>
 
</ref>
  
 
; Inference
 
; Inference
 
An inference is a deduction made from the evidence.<ref>
 
An inference is a deduction made from the evidence.<ref>
''R v Shields'', [http://canlii.ca/t/g71x4 2014 NSPC 21] (CanLII){{perNSPC|Derrick J}}{{at|105}}<br>
+
''R v Shields'', [http://canlii.ca/t/g71x4 2014 NSPC 21] (CanLII){{perNSPC|Derrick J}}{{atL|105|http://canlii.ca/t/g71x4}}<br>
 
''R v Latif'', [2004] OJ No. 5891 (SCJ){{NOCANLII}}{{at|4}}<br>
 
''R v Latif'', [2004] OJ No. 5891 (SCJ){{NOCANLII}}{{at|4}}<br>
 
</ref>
 
</ref>
Line 158: Line 160:
 
; Inference in Absence of Evidence
 
; 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".<ref>
 
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".<ref>
{{supra1|Villaroman}}{{at|37}}<br>
+
{{supra1|Villaroman}}{{atL|37|http://canlii.ca/t/gsq3b}}<br>
 
</ref>
 
</ref>
 
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".<ref>
 
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".<ref>
{{supra1|Villaroman}}{{ats|37 to 38}}<br>
+
{{supra1|Villaroman}}{{atsL|37 to 38|http://canlii.ca/t/gsq3b#par37}}<br>
 
</ref>
 
</ref>
  
Line 170: Line 172:
 
; Jury Instructions
 
; Jury Instructions
 
There is no longer any legal requirement for "special instructions" on circumstantial evidence even when relating to the essential element of identity.<ref>
 
There is no longer any legal requirement for "special instructions" on circumstantial evidence even when relating to the essential element of identity.<ref>
{{supra1|Griffin}}{{at|33}}<br>
+
{{supra1|Griffin}}{{atL|33|http://canlii.ca/t/23zqj}}<br>
 
</ref>
 
</ref>
  
Line 183: Line 185:
  
 
The original common law requirement of proof for a finding of guilt in circumstantial case is based on the rule in hodge’s case.<ref>
 
The original common law requirement of proof for a finding of guilt in circumstantial case is based on the rule in hodge’s case.<ref>
considered in ''R v Linn'', [http://canlii.ca/t/1nqp9 1994 CanLII 4643] (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305{{perSKCA|Vancise JA}}{{ats|13-15}}<br>''R v Munro'', [http://canlii.ca/t/5hl3 2001 SKQB 138] (CanLII){{perSKQB|Baynton J}}{{ats|13-14}}<br>
+
considered in ''R v Linn'', [http://canlii.ca/t/1nqp9 1994 CanLII 4643] (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305{{perSKCA|Vancise JA}}{{atsL|13 to 15|http://canlii.ca/t/1nqp9#par13}}<br>
''R v Trevor'', [http://canlii.ca/t/1mnwm 2006 BCCA 91] (CanLII){{perBCCA|Low JA}}{{at|12}}<br>
+
''R v Munro'', [http://canlii.ca/t/5hl3 2001 SKQB 138] (CanLII){{perSKQB|Baynton J}}{{atsL|13 to 14|http://canlii.ca/t/5hl3#par13}}<br>
 +
''R v Trevor'', [http://canlii.ca/t/1mnwm 2006 BCCA 91] (CanLII){{perBCCA|Low JA}}{{atL|12|http://canlii.ca/t/1mnwm}}<br>
 
cf. ''R v Cooper'', [1978] 1 SCR 860, [http://canlii.ca/t/1mkb1 1977 CanLII 11] (SCC){{perSCC|Ritchie J}}{{atp|881}}<br>
 
cf. ''R v Cooper'', [1978] 1 SCR 860, [http://canlii.ca/t/1mkb1 1977 CanLII 11] (SCC){{perSCC|Ritchie J}}{{atp|881}}<br>
 
</ref>  
 
</ref>  
Line 197: Line 200:
  
 
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.<ref>
 
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.<ref>
''R v Robert'', [http://canlii.ca/t/1fb32 2000 CanLII 5129] (ON CA){{perONCA|Sharpe JA}}{{at|15}}<br>
+
''R v Robert'', [http://canlii.ca/t/1fb32 2000 CanLII 5129] (ON CA){{perONCA|Sharpe JA}}{{atL|15|http://canlii.ca/t/1fb32}}<br>
 
</ref>
 
</ref>
  
Line 207: Line 210:
 
; The US and UK Rejection
 
; The US and UK Rejection
 
It should be noted that both the US and the UK have long since abandoned the test from Hodges rule.<ref>
 
It should be noted that both the US and the UK have long since abandoned the test from Hodges rule.<ref>
see ''R v Robinson'', [http://canlii.ca/t/gwss2 2017 BCCA 6] (CanLII){{perBCCA|Newbury JA}}{{at|24}}<br>
+
see ''R v Robinson'', [http://canlii.ca/t/gwss2 2017 BCCA 6] (CanLII){{perBCCA|Newbury JA}}{{atL|24|http://canlii.ca/t/gwss2}}<br>
 
US: ''Holland v United States'', 348 U.S. 121 (1954)<br>
 
US: ''Holland v United States'', 348 U.S. 121 (1954)<br>
 
UK: ''McGreevy v DPP'', [1973] 1 All E.R. 503 (H.L.)<br>
 
UK: ''McGreevy v DPP'', [1973] 1 All E.R. 503 (H.L.)<br>
Line 216: Line 219:
 
==Motive==
 
==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.<ref>
 
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.<ref>
''R v Griffin'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}} -- statement of deceased suggests a motive for murder</ref> 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.<ref>''R v Lewis'', [http://canlii.ca/t/1mkv6 1979 CanLII 19] (SCC), [1979] 2 SCR 821{{perSCC|Dickson J}}</ref>
+
''R v Griffin'', [http://canlii.ca/t/23zqj 2009 SCC 28] (CanLII){{perSCC|Charron J}} (statement of deceased suggests a motive for murder)
 +
</ref>
 +
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.<ref>
 +
''R v Lewis'', [http://canlii.ca/t/1mkv6 1979 CanLII 19] (SCC), [1979] 2 SCR 821{{perSCC|Dickson J}}<br>
 +
</ref>
  
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.<ref>''R v Ilina'', [http://canlii.ca/t/1c13f 2003 MBCA 20] (CanLII){{perMBCA|Scott CJ}}</ref>
+
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.<ref>
 +
''R v Ilina'', [http://canlii.ca/t/1c13f 2003 MBCA 20] (CanLII){{perMBCA|Scott CJ}}</ref>
  
 
Evidence of motive goes to prove intent as well as the act.<ref>
 
Evidence of motive goes to prove intent as well as the act.<ref>
 
''R v Cloutier'', [http://canlii.ca/t/fslnk 1939 CanLII 26] (SCC), [1940] SCR 131{{perSCC|Rinfret J}}<br>
 
''R v Cloutier'', [http://canlii.ca/t/fslnk 1939 CanLII 26] (SCC), [1940] SCR 131{{perSCC|Rinfret J}}<br>
''R c Bari'', [http://canlii.ca/t/1q41l 2006 NBCA 119] (CanLII){{perNBCA|Deschênes JA}}</ref>
+
''R c Bari'', [http://canlii.ca/t/1q41l 2006 NBCA 119] (CanLII){{perNBCA|Deschênes JA}}<br>
 +
</ref>
  
 
Evidence of insolvency or debt can be admitted to establish motive for an offence of theft, fraud or arson.<ref>
 
Evidence of insolvency or debt can be admitted to establish motive for an offence of theft, fraud or arson.<ref>
''R v Portillo'', [http://canlii.ca/t/6360 2003 CanLII 5709] (ON CA){{perONCA|Doherty JA}} - accused's possession of victim's property establish motive of theft for murder charge</ref>
+
''R v Portillo'', [http://canlii.ca/t/6360 2003 CanLII 5709] (ON CA){{perONCA|Doherty JA}} (accused's possession of victim's property establish motive of theft for murder charge)<br>
 +
</ref>
  
 
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.<ref>
 
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.<ref>
''R v Cooper'', [http://canlii.ca/t/1j0mf 2004 BCCA 540] (CanLII){{perBCCA|Thackray JA}}{{Ats|34, 35}}<br>
+
''R v Cooper'', [http://canlii.ca/t/1j0mf 2004 BCCA 540] (CanLII){{perBCCA|Thackray JA}}{{AtsL|34, 35|http://canlii.ca/t/1j0mf}}<br>
 
</ref>
 
</ref>
  
 
In a murder case, evidence of a prior abuse that establishes an animus or motive to kill is admissible against the accused.<ref>
 
In a murder case, evidence of a prior abuse that establishes an animus or motive to kill is admissible against the accused.<ref>
''R v Chapman'', [http://canlii.ca/t/1mdh6 2006 CanLII 1178] (ON CA), (2006), 204 CCC (3d) 449 (Ont CA){{perONCA|Simmons JA}}{{at|27}}<br>  
+
''R v Chapman'', [http://canlii.ca/t/1mdh6 2006 CanLII 1178] (ON CA), (2006), 204 CCC (3d) 449 (Ont CA){{perONCA|Simmons JA}}{{atL|27|http://canlii.ca/t/1mdh6}}<br>  
''R v Cudjoe'', [http://canlii.ca/t/2476q 2009 ONCA 543] (CanLII){{perONCA|Watt JA}}{{at|64}}<br>
+
''R v Cudjoe'', [http://canlii.ca/t/2476q 2009 ONCA 543] (CanLII){{perONCA|Watt JA}}{{atL|64|http://canlii.ca/t/2476q}}<br>
''R v Van Osselaer'', [http://canlii.ca/t/58kj 2002 BCCA 464] (CanLII), (2002), 167 CCC (3d) 225 (BC CA){{perBCCA|Hall JA}}{{At|23}}, leave to appeal refused, [2002] SCCA No 444 (SCC)<br>
+
''R v Van Osselaer'', [http://canlii.ca/t/58kj 2002 BCCA 464] (CanLII), (2002), 167 CCC (3d) 225 (BC CA){{perBCCA|Hall JA}}{{AtL|23|http://canlii.ca/t/58kj}}, leave to appeal refused, [2002] SCCA No 444 (SCC)<br>
''R v Batte'', [http://canlii.ca/t/1fb7d 2000 CanLII 5750] (ON CA), (2000), 145 CCC (3d) 449 (Ont CA){{perONCA|Rosenberg JA}}{{ats|97 and 102}}<br>
+
''R v Batte'', [http://canlii.ca/t/1fb7d 2000 CanLII 5750] (ON CA), (2000), 145 CCC (3d) 449 (Ont CA){{perONCA|Rosenberg JA}}{{atsL|97 and 102|http://canlii.ca/t/1fb7d#par97}}<br>
 
</ref>
 
</ref>
  
Line 245: Line 255:
  
 
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.<ref>
 
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.<ref>
''R v Woollam'', [http://canlii.ca/t/fscd8 2012 ONSC 2188] (CanLII){{perONSC|Durno J}}{{at|48}}<br>
+
''R v Woollam'', [http://canlii.ca/t/fscd8 2012 ONSC 2188] (CanLII){{perONSC|Durno J}}{{atL|48|http://canlii.ca/t/fscd8}}<br>
 
see ''Murphy and Butt v The Queen'', [http://canlii.ca/t/1z6df 1976 CanLII 198] (SCC), [1977) 2 SCR 603{{perSCC|Spence J}}{{atp|617}}<br>
 
see ''Murphy and Butt v The Queen'', [http://canlii.ca/t/1z6df 1976 CanLII 198] (SCC), [1977) 2 SCR 603{{perSCC|Spence J}}{{atp|617}}<br>
 
''R v Boss'', [http://canlii.ca/t/1p77v 1988 CanLII 190] (ON CA), (1988), 46 CCC (3d) 523 (Ont. C.A.){{perONCA|Cory JA}}<br>
 
''R v Boss'', [http://canlii.ca/t/1p77v 1988 CanLII 190] (ON CA), (1988), 46 CCC (3d) 523 (Ont. C.A.){{perONCA|Cory JA}}<br>
''R v Varcoe'', [http://canlii.ca/t/1qwxw 2007 ONCA 194] (CanLII){{perONCA|MacFarland JA}}{{at|33}}<br>
+
''R v Varcoe'', [http://canlii.ca/t/1qwxw 2007 ONCA 194] (CanLII){{perONCA|MacFarland JA}}{{atL|33|http://canlii.ca/t/1qwxw}}<br>
''R v Arsenault'', [http://canlii.ca/t/6hj9 1997 CanLII 1069] (ON CA), [1997] OJ No 3977 (C.A.){{TheCourtONCA}}{{at|9}}<br>
+
''R v Arsenault'', [http://canlii.ca/t/6hj9 1997 CanLII 1069] (ON CA), [1997] OJ No 3977 (C.A.){{TheCourtONCA}}{{atL|9|http://canlii.ca/t/6hj9}}<br>
''R v Clark'', [http://canlii.ca/t/6jqw 1995 CanLII 1474] (ON CA), [1995] OJ No 4036 (C.A.){{TheCourtONCA}}{{at|7}}<br>
+
''R v Clark'', [http://canlii.ca/t/6jqw 1995 CanLII 1474] (ON CA), [1995] OJ No 4036 (C.A.){{TheCourtONCA}}{{atL|7|http://canlii.ca/t/6jqw}}<br>
 
</ref>
 
</ref>
  
Line 268: Line 278:
 
==Opportunity==
 
==Opportunity==
 
Opportunity evidence is a form of circumstantial evidence.<ref>
 
Opportunity evidence is a form of circumstantial evidence.<ref>
''R v Doodnaught'', [http://canlii.ca/t/h6m5m 2017 ONCA 781] (CanLII){{perONCA|Watt JA}}{{at|67}} ("Evidence of opportunity typifies the concomitant use of circumstantial evidence")<br>
+
''R v Doodnaught'', [http://canlii.ca/t/h6m5m 2017 ONCA 781] (CanLII){{perONCA|Watt JA}}{{atL|67|http://canlii.ca/t/h6m5m}} ("Evidence of opportunity typifies the concomitant use of circumstantial evidence")<br>
 
</ref>
 
</ref>
 
Evidence that tends to show the presence of an accused at or near the location of the offence near in time to its commission is "relevant, material and ''prima facie'' admissible", even if it does nothing to suggest exclusive opportunity.<ref>
 
Evidence that tends to show the presence of an accused at or near the location of the offence near in time to its commission is "relevant, material and ''prima facie'' admissible", even if it does nothing to suggest exclusive opportunity.<ref>
{{ibid1|Doodnaught}}{{at|67}}<br>
+
{{ibid1|Doodnaught}}{{atL|67|http://canlii.ca/t/h6m5m}}<br>
 
</ref>
 
</ref>
  
 
Opportunity alone cannot be sufficient to make the case, even when in combination with motive.<ref>
 
Opportunity alone cannot be sufficient to make the case, even when in combination with motive.<ref>
 
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17], [1987] 2 SCR 168{{perSCC|McIntyre J}}  ("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")
 
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17], [1987] 2 SCR 168{{perSCC|McIntyre J}}  ("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")
{{supra1|Doodnaught}}{{at|68}}<br>
+
{{supra1|Doodnaught}}{{atL|68|http://canlii.ca/t/h6m5m}}<br>
 
''R v Ferianz'', [1962] OWN 40 (CA){{NOCANLII}}{{atp|42}}<br>
 
''R v Ferianz'', [1962] OWN 40 (CA){{NOCANLII}}{{atp|42}}<br>
 
</ref>
 
</ref>
  
 
The accused is always permitted to counter evidence of opportunity with evidence of personal capacity, evidence of equivalent or superior capacity.<ref>
 
The accused is always permitted to counter evidence of opportunity with evidence of personal capacity, evidence of equivalent or superior capacity.<ref>
{{supra1|Doodnaught}}{{at|68}}<br>
+
{{supra1|Doodnaught}}{{atL|68|http://canlii.ca/t/h6m5m}}<br>
 
</ref>
 
</ref>
  
Line 293: Line 303:
 
===Exclusive Opportunity===
 
===Exclusive Opportunity===
 
Evidence that establishes 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 the identity of the culprit and may prove guilt beyond a reasonable doubt.<ref>  
 
Evidence that establishes 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 the identity of the culprit and may prove guilt beyond a reasonable doubt.<ref>  
''R v Doodnaught'', [http://canlii.ca/t/h6m5m 2017 ONCA 781] (CanLII){{perONCA|Watt JA}}{{at|70}} ("Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt")<br>
+
''R v Doodnaught'', [http://canlii.ca/t/h6m5m 2017 ONCA 781] (CanLII){{perONCA|Watt JA}}{{atL|70|http://canlii.ca/t/h6m5m}} ("Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt")<br>
 
''R v Imrich'', [http://canlii.ca/t/1tx3s 1977 CanLII 27] (SCC), [1978] 1 SCR 622{{perSCC|Ritchie J}}, affirming (1974), [http://canlii.ca/t/1vlmp 1974 CanLII 42] (ON CA), 21 CCC (2d) 99 (Ont. C.A.){{perONCA|Schroeder JA}}.
 
''R v Imrich'', [http://canlii.ca/t/1tx3s 1977 CanLII 27] (SCC), [1978] 1 SCR 622{{perSCC|Ritchie J}}, affirming (1974), [http://canlii.ca/t/1vlmp 1974 CanLII 42] (ON CA), 21 CCC (2d) 99 (Ont. C.A.){{perONCA|Schroeder JA}}.
 
</ref>
 
</ref>
 
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 the timing of events and each person's location during or near that time.{{NEEDCITE}}
 
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 the timing of events and each person's location during or near that time.{{NEEDCITE}}
  
Evidence of opportunity that is not exclusive is akin to evidence of motive. It cannot be used as a form of corroboration.<ref>''R v Ferianz'' (1962), 37 C.R. 37 (Ont. C.A.) {{NOCANLII}}(“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....”)</ref> However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.<ref>
+
Evidence of opportunity that is not exclusive is akin to evidence of motive. It cannot be used as a form of corroboration.<ref>
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17], [1987] 2 SCR 168{{perSCC|McIntyre J}} ("where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice.")<br>See ''R v Johnson'', [http://canlii.ca/t/1hjwq 2004 NSCA 91] (CanLII){{perNSCA|Oland JA}}</ref>
+
''R v Ferianz'' (1962), 37 C.R. 37 (Ont. C.A.) {{NOCANLII}}(“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....”)</ref>  
 +
However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.<ref>
 +
''R v Yebes'', [http://canlii.ca/t/1ftlc 1987 CanLII 17], [1987] 2 SCR 168{{perSCC|McIntyre J}} ("where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice.")<br>
 +
See ''R v Johnson'', [http://canlii.ca/t/1hjwq 2004 NSCA 91] (CanLII){{perNSCA|Oland JA}}</ref>
  
 
{{reflist|2}}
 
{{reflist|2}}
Line 316: Line 329:
 
==Accused's Tendency for Violence==
 
==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".<ref>
 
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".<ref>
''R v MacDonald'', [http://canlii.ca/t/1cf10 2002 CanLII 14251] (ON CA){{perONCA|Doherty JA}}{{at|35}}<br>
+
''R v MacDonald'', [http://canlii.ca/t/1cf10 2002 CanLII 14251] (ON CA){{perONCA|Doherty JA}}{{atL|35|http://canlii.ca/t/1cf10}}<br>
 
</ref>
 
</ref>
  
Line 324: Line 337:
  
 
Evidence of prior bad acts may be admissible to establish motive or animus regardless of how similar it is the allegations.<ref>
 
Evidence of prior bad acts may be admissible to establish motive or animus regardless of how similar it is the allegations.<ref>
''R v Chapman'', [http://canlii.ca/t/1mdh6 2006 CanLII 1178] (ON CA){{perONCA|Simmons JA}}{{at|27}}<br>
+
''R v Chapman'', [http://canlii.ca/t/1mdh6 2006 CanLII 1178] (ON CA){{perONCA|Simmons JA}}{{atL|27|http://canlii.ca/t/1mdh6}}<br>
  
 
</ref>
 
</ref>
Line 334: Line 347:
 
; Demeanor
 
; Demeanor
 
Demeanour evidence may constitute circumstantial evidence of guilty knowledge.<ref>
 
Demeanour evidence may constitute circumstantial evidence of guilty knowledge.<ref>
e.g., ''R v Goulart-Nelson'', [http://canlii.ca/t/1hz5s 2004 CanLII 32077] (ON CA), [2004] OJ No 4010 (C.A.){{TheCourtONCA}}{{at|14}}<br>
+
e.g., ''R v Goulart-Nelson'', [http://canlii.ca/t/1hz5s 2004 CanLII 32077] (ON CA), [2004] OJ No 4010 (C.A.){{TheCourtONCA}}{{atL|14|http://canlii.ca/t/1hz5s}}<br>
''R v Morales'', [http://canlii.ca/t/1nl9b 2006 CanLII 19930] (ON CA), (2006), 81 O.R. (3d) 161 (C.A.){{perONCA|LaForme JA}}{{ats|12, 14}}<br>
+
''R v Morales'', [http://canlii.ca/t/1nl9b 2006 CanLII 19930] (ON CA), (2006), 81 O.R. (3d) 161 (C.A.){{perONCA|LaForme JA}}{{atsL|12, 14|http://canlii.ca/t/1nl9b#par12}}<br>
 
</ref> 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.<ref>
 
</ref> 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.<ref>
''R v De Rojas'', [http://canlii.ca/t/ftcn0 2012 ONSC 3227] (CanLII){{perONSC|Hill J}}{{at|88}}</ref>
+
''R v De Rojas'', [http://canlii.ca/t/ftcn0 2012 ONSC 3227] (CanLII){{perONSC|Hill J}}{{atL|88|http://canlii.ca/t/ftcn0}}</ref>
  
 
; Drug Purchase Calls
 
; 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.<ref>
 
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.<ref>
e.g. ''R v Cook'', [http://canlii.ca/t/23gjx 1978 CanLII 399] (BC CA), (1978), 10 B.C.L.R. 84{{perBCCA|McIntyre JA}} at 86<br>
+
e.g. ''R v Cook'', [http://canlii.ca/t/23gjx 1978 CanLII 399] (BC CA), (1978), 10 B.C.L.R. 84{{perBCCA|McIntyre JA}}{{atp|86}}<br>
''R v Lees'', [http://canlii.ca/t/23pv9 2009 BCCA 240] (CanLII){{perBCCA|Newbury JA}}{{at|21}}<br>
+
''R v Lees'', [http://canlii.ca/t/23pv9 2009 BCCA 240] (CanLII){{perBCCA|Newbury JA}}{{atL|21|http://canlii.ca/t/23pv9}}<br>
''R v Bjornson'', [http://canlii.ca/t/27525 2009 BCSC 1780] (CanLII){{perBCSC|Bennett J}}{{at|13}}<br>
+
''R v Bjornson'', [http://canlii.ca/t/27525 2009 BCSC 1780] (CanLII){{perBCSC|Bennett J}}{{atL|13|http://canlii.ca/t/27525}}<br>
''R v Graham'', [http://canlii.ca/t/fw64n 2013 BCCA 75] (CanLII){{perBCCA|Neilson JA}}{{at|36}} - However there is some inconsistency see para 38<br>
+
''R v Graham'', [http://canlii.ca/t/fw64n 2013 BCCA 75] (CanLII){{perBCCA|Neilson JA}}{{atL|36|http://canlii.ca/t/fw64n}} - However there is some inconsistency see para 38<br>
 
</ref>
 
</ref>
  

Revision as of 13:06, 14 August 2019

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 its 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 the 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]

Standard of Appellate Review

The standard of review of any instructions on the drawing of inferences of knowledge in a circumstantial case is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence". [19]

  1. see R v Atlee, 2010 ONCJ 72 (CanLII), per Thibideau J, at para http://canlii.ca/t/28jdk
    see also Watt's Manual of Criminal Evidence ss. 9.01
    R v Campbell, 2001 CanLII 7064 (ON CA), per Weiler JA, at and 11#parhttp://canlii.ca/t/1f823#par10 paras http://canlii.ca/t/1f823#par10{{{3}}}
    R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at para http://canlii.ca/t/51tb (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. R v Griffin, 2009 SCC 28 (CanLII), per Charron J, at para http://canlii.ca/t/23zqj
    R v Ngo, 2009 BCCA 301 (CanLII), per Rowles JA, at para http://canlii.ca/t/244x8
  3. R v SCB, 1997 CanLII 6319 (ON CA), (1997), 104 O.A.C. 81 (CA), per Doherty and Rosenberg JJA, at to 36#parhttp://canlii.ca/t/6hkq#par33 paras http://canlii.ca/t/6hkq#par33{{{3}}}
  4. R v Pilon, 2009 ONCA 248 (CanLII), (2009) 243 CCC (3d) 109 (ONCA), per Doherty JA
  5. R v Arp, 1998 CanLII 769, [1998] 3 SCR 339, per Cory J, at p. 375
  6. FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, per Rothstein J, at 47-8#parhttp://canlii.ca/t/20xm8#par33 paras http://canlii.ca/t/20xm8#par33{{{3}}}
    R v Yousif, 2011 ABCA 12 (CanLII), per Slatter JA, at para http://canlii.ca/t/2fcg8
  7. R v Allen, 2015 BCCA 299 (CanLII), per Donald JA, at para http://canlii.ca/t/gkbkr
  8. R v John, [1970] 5 CCC 63, aff'd at 1970 CanLII 199 (SCC), [1971] SCR 781, per Ritchie J
  9. R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303 (ONCA), per Evans JA
  10. See R v White, 1996 CanLII 3013 (ON CA), (1996), 108 CCC (3d) 1 (Ont.C.A.), per curiam
    R v Uhrig, 2012 ONCA 470 (CanLII), per curiam
  11. R v Stewart, 1976 CanLII 202 (SCC), [1977] 2 SCR 748, per Pigeon J
    R v Turlon, (1989) 49 CCC (3d) 186 (Ont. C.A.), 1989 CanLII 7206 (ON CA), per Zuber JA
  12. R v Leitch, [2010] OJ No 6240 (C.J.), aff’d 2012 ONCA 85 (CanLII), per curiam
    R v Sykes, 2014 NSCA 57 (CanLII), per Farrar JA, at para http://canlii.ca/t/g744j
  13. R v Nolet, 2010 SCC 24 (CanLII), per Binnie J, at para http://canlii.ca/t/2b8jp
    R v Luc, [2007] OJ No 4210 (C.J.)(*no CanLII links) , at paras 36-37
    Sykes, supra, at para http://canlii.ca/t/g744j
  14. Griffin, supra, at para http://canlii.ca/t/23zqj ("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), per Sharpe JA, at para http://canlii.ca/t/1fb32
  15. R v Tombran, 2000 CanLII 2688 (ON CA), (2000), 142 CCC (3d) 380, per Sharpe JA at 392
    R v Fleet, 1997 CanLII 867 (ON CA), (1997), 36 O.R. (3d) 542, 120 CCC (3d) 457 (C.A.), per curiam
  16. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3, per Lamer CJ
  17. R v Froese (1988) 44 CCC (3d) 1 (MBCA), 1988 CanLII 7088 (MB CA), per Huband JA
  18. R v Mars, 2006 CanLII 3460 (ON CA), (2006), 205 CCC (3d) 376, per Doherty JA, at to 24#parhttp://canlii.ca/t/1mjp2#par19 paras http://canlii.ca/t/1mjp2#par19{{{3}}}
    R v Pakula, 2017 ABPC 33 (CanLII), per Semenuk J
  19. R v Villaroman, 2016 SCC 33 (CanLII), per Cromwell J, at para http://canlii.ca/t/gsq3b

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]

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.[2]

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."[3]

Inferences consistent with innocence do not need to arise from proven facts.[4] To require proven facts wrongly places the burden upon the accused to prove what happened rather than simply raise a doubt.[5]

Cumulative Effect of the Evidence

The Court must look at the cumulative effect of the evidence and not in piecemeal.[6]

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.[7]

Inference of Guilt is The Only Reasonable One

The judge must make an 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.[8]

Inference

An inference is a deduction made from the evidence.[9]

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.[10]

Example
Fingerprints

The mere finding of fingerprints on a household item moved during a break and enter can be sufficient to establish guilt.[11]

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".[12] 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".[13]

It must be kept in mind however that as a rule the "absence of evidence is not evidence of absence".[14]

Jury Instructions

There is no longer any legal requirement for "special instructions" on circumstantial evidence even when relating to the essential element of identity.[15]

  1. R v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168, per McIntyre J
    R v Griffin; R v Harris, 2009 SCC 28 (CanLII), [2009] S.C.J. No. 28, per Charron J, at para http://canlii.ca/t/23zqj (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.")
  2. R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J
    Mezzo v The Queen, 1986 CanLII 16, [1986] 1 SCR 802, per McIntyre J, at para http://canlii.ca/t/1ftrq
  3. R v Moose, 2015 ABCA 71 (CanLII), per curiam, at [http://canlii.ca/t/ggcbj para [http://canlii.ca/t/ggcbj
  4. R v Khela, 2009 SCC 4 (CanLII), [2009] 1 SCR 104, per Fish J, at para http://canlii.ca/t/2260t
    see also R v Defaveri, 2014 BCCA 370 (CanLII), 361 B.C.A.C. 301, per Lowry JA, at para http://canlii.ca/t/gdsl5
    R v Bui, 2014 ONCA 614 (CanLII), 14 C.R. (7th) 149, per Simmons JA, at para http://canlii.ca/t/g8sgp
  5. R v Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII), per Cromwell J, at para http://canlii.ca/t/gsq3b
  6. Trevor, supra
    R v Smith, 2016 ONCA 25 (CanLII), per Watt JA, at to 82#parhttp://canlii.ca/t/gmw9r#par81 paras http://canlii.ca/t/gmw9r#par81{{{3}}}
  7. Smith, ibid., at para http://canlii.ca/t/gmw9r
  8. R v Garciacruz, 2015 ONCA 27 (CanLII), per Rouleau JA
    R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII), per Charron J, at para http://canlii.ca/t/23zqj ("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")
  9. R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para http://canlii.ca/t/g71x4
    R v Latif, [2004] OJ No. 5891 (SCJ)(*no CanLII links) , at para 4
  10. R v Bouzied, 2013 ONCA 276 (CanLII), per curiam
  11. e.g. R v Miller, 2016 BCCA 263 (CanLII), per Lowry JA
  12. Villaroman, supra, at para http://canlii.ca/t/gsq3b
  13. Villaroman, supra, at to 38#parhttp://canlii.ca/t/gsq3b#par37 paras http://canlii.ca/t/gsq3b#par37{{{3}}}
  14. R v Piec, 2007 MBCA 138 (CanLII), per Steel JA
  15. Griffin, supra, at para http://canlii.ca/t/23zqj

Hodges Rule

Common Law Hodges' Rule

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".[1]

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]

Hodge's rule does not apply to determine the mens rea (including the accused's intention) for an offence.[3]

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

Canadian Adoption

The Rule from Hodges was adopted in Canada and characterized as a test that requires that "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts".[6]

The US and UK Rejection

It should be noted that both the US and the UK have long since abandoned the test from Hodges rule.[7]

  1. Hodge's Case
  2. considered in R v Linn, 1994 CanLII 4643 (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305, per Vancise JA, at to 15#parhttp://canlii.ca/t/1nqp9#par13 paras http://canlii.ca/t/1nqp9#par13{{{3}}}
    R v Munro, 2001 SKQB 138 (CanLII), per Baynton J, at to 14#parhttp://canlii.ca/t/5hl3#par13 paras http://canlii.ca/t/5hl3#par13{{{3}}}
    R v Trevor, 2006 BCCA 91 (CanLII), per Low JA, at para http://canlii.ca/t/1mnwm
    cf. R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J, at p. 881
  3. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J
    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.')
  4. Robert, supra
  5. R v Robert, 2000 CanLII 5129 (ON CA), per Sharpe JA, at para http://canlii.ca/t/1fb32
  6. see R v McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), per Porter CJ, at p. 479, aff’d 1966 CanLII 6 (SCC), [1966] SCR 254, per Cartwright J
  7. see R v Robinson, 2017 BCCA 6 (CanLII), per Newbury JA, at para http://canlii.ca/t/gwss2
    US: Holland v United States, 348 U.S. 121 (1954)
    UK: McGreevy v DPP, [1973] 1 All E.R. 503 (H.L.)

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), per Charron J (statement of deceased suggests a motive for murder)
  2. R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821, per Dickson J
  3. R v Ilina, 2003 MBCA 20 (CanLII), per Scott CJ
  4. R v Cloutier, 1939 CanLII 26 (SCC), [1940] SCR 131, per Rinfret J
    R c Bari, 2006 NBCA 119 (CanLII), per Deschênes JA
  5. R v Portillo, 2003 CanLII 5709 (ON CA), per Doherty JA (accused's possession of victim's property establish motive of theft for murder charge)
  6. R v Cooper, 2004 BCCA 540 (CanLII), per Thackray JA, at 35#parhttp://canlii.ca/t/1j0mf paras http://canlii.ca/t/1j0mf{{{3}}}
  7. R v Chapman, 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont CA), per Simmons JA, at para http://canlii.ca/t/1mdh6
    R v Cudjoe, 2009 ONCA 543 (CanLII), per Watt JA, at para http://canlii.ca/t/2476q
    R v Van Osselaer, 2002 BCCA 464 (CanLII), (2002), 167 CCC (3d) 225 (BC CA), per Hall JA, at para http://canlii.ca/t/58kj, leave to appeal refused, [2002] SCCA No 444 (SCC)
    R v Batte, 2000 CanLII 5750 (ON CA), (2000), 145 CCC (3d) 449 (Ont CA), per Rosenberg JA, at and 102#parhttp://canlii.ca/t/1fb7d#par97 paras http://canlii.ca/t/1fb7d#par97{{{3}}}

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), per Deschênes JA
  2. R v Woollam, 2012 ONSC 2188 (CanLII), per Durno J, at para http://canlii.ca/t/fscd8
    see Murphy and Butt v The Queen, 1976 CanLII 198 (SCC), [1977) 2 SCR 603, per Spence J, at p. 617
    R v Boss, 1988 CanLII 190 (ON CA), (1988), 46 CCC (3d) 523 (Ont. C.A.), per Cory JA
    R v Varcoe, 2007 ONCA 194 (CanLII), per MacFarland JA, at para http://canlii.ca/t/1qwxw
    R v Arsenault, 1997 CanLII 1069 (ON CA), [1997] OJ No 3977 (C.A.), per curiam, at para http://canlii.ca/t/6hj9
    R v Clark, 1995 CanLII 1474 (ON CA), [1995] OJ No 4036 (C.A.), per curiam, at para http://canlii.ca/t/6jqw

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 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), per Rosenberg JA
    R v Kinkead, 2003 CanLII 52177 (ON CA), per Simmons JA
  2. R v Davison, 1974 CanLII 787 (ON CA), (1974), 20 CCC (2d) 424 (ONCA), per Martin JA

Opportunity

Opportunity evidence is a form of circumstantial evidence.[1] Evidence that tends to show the presence of an accused at or near the location of the offence near in time to its commission is "relevant, material and prima facie admissible", even if it does nothing to suggest exclusive opportunity.[2]

Opportunity alone cannot be sufficient to make the case, even when in combination with motive.[3]

The accused is always permitted to counter evidence of opportunity with evidence of personal capacity, evidence of equivalent or superior capacity.[4]

Last Person Present With Victim

Where the accused is the last person seen with the victim is circumstantial evidence of opportunity.[5]


  1. R v Doodnaught, 2017 ONCA 781 (CanLII), per Watt JA, at para http://canlii.ca/t/h6m5m ("Evidence of opportunity typifies the concomitant use of circumstantial evidence")
  2. Doodnaught, ibid., at para http://canlii.ca/t/h6m5m
  3. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168, per McIntyre J ("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") Doodnaught, supra, at para http://canlii.ca/t/h6m5m
    R v Ferianz, [1962] OWN 40 (CA)(*no CanLII links) , at p. 42
  4. Doodnaught, supra, at para http://canlii.ca/t/h6m5m
  5. R v Stevens (1984), 11 CCC (3d) 318, 1984 CanLII 3481 (ON CA), per Martin JA

Exclusive Opportunity

Evidence that establishes 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 the identity of the culprit and may prove guilt beyond a reasonable doubt.[1] 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 the 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.[2] However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.[3]

  1. R v Doodnaught, 2017 ONCA 781 (CanLII), per Watt JA, at para http://canlii.ca/t/h6m5m ("Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt")
    R v Imrich, 1977 CanLII 27 (SCC), [1978] 1 SCR 622, per Ritchie J, affirming (1974), 1974 CanLII 42 (ON CA), 21 CCC (2d) 99 (Ont. C.A.), per Schroeder JA.
  2. R v Ferianz (1962), 37 C.R. 37 (Ont. C.A.) (*no CanLII links) (“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....”)
  3. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168, per McIntyre J ("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), per Oland JA

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, per Lamer CJ
  2. R v Sims, 1994 CanLII 1298 (BC CA), per Wood JA

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 of how similar it is the allegations.[3]

  1. R v MacDonald, 2002 CanLII 14251 (ON CA), per Doherty JA, at para http://canlii.ca/t/1cf10
  2. R v Fournier, 2000 BCCA 140 (CanLII), per Hall JA
  3. R v Chapman, 2006 CanLII 1178 (ON CA), per Simmons JA, at para http://canlii.ca/t/1mdh6

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] OJ No 4010 (C.A.), per curiam, at para http://canlii.ca/t/1hz5s
    R v Morales, 2006 CanLII 19930 (ON CA), (2006), 81 O.R. (3d) 161 (C.A.), per LaForme JA, at 14#parhttp://canlii.ca/t/1nl9b#par12 paras http://canlii.ca/t/1nl9b#par12{{{3}}}
  2. R v De Rojas, 2012 ONSC 3227 (CanLII), per Hill J, at para http://canlii.ca/t/ftcn0
  3. e.g. R v Cook, 1978 CanLII 399 (BC CA), (1978), 10 B.C.L.R. 84, per McIntyre JA, at p. 86
    R v Lees, 2009 BCCA 240 (CanLII), per Newbury JA, at para http://canlii.ca/t/23pv9
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J, at para http://canlii.ca/t/27525
    R v Graham, 2013 BCCA 75 (CanLII), per Neilson JA, at para http://canlii.ca/t/fw64n - However there is some inconsistency see para 38
  4. e.g. R v Doan, 2013 BCCA 123 (CanLII), per curiam - defence argues accidental transfer

See Also

Case Digests