Inferences

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 96814)

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]

An inference is a deduction of fact based on "inductive reasoning" using logic, reasonability and human experience.[2] In any given case the inferences are generally mandatory and are at the discretion of the judge based on the weighing of the whole of the evidence.[3]

Drawing inferences has been described as requiring two steps. First, there must be findings of fact from which inferences may be drawn. Second, the judge considers whether based on the established facts an inference is "reasonable, rational and logical."[4] This does not mean however that the absence of evidence cannot be used to draw inferences when considered in the context of guilt.[5]

The Court is entitled to apply "common sense" upon the consideration.[6] In fact, common sense and human experience is a necessary component to lawful inferences.[7]

Judges should avoid "common sense" assumptions not grounded in evidence or judicial notice.[8]

Evidence Required as Basis

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."[9]

No Conjecture or Speculation

The law recognizes a difference between evidence and speculation.[10] They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.[11]

Inferences that are drawn without evidence is mere speculation.[12]

Drawing Inferences

An inferred fact must be one that is "reasonably and logically drawn from a fact or group of facts established by the evidence."[13] An inference that does not properly flow from the established fact is mere conjecture and speculation.[14] 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."[15] The inference does not need to flow "easily" from those facts.[16]


  1. ↑ R v Brodeur, 2014 NBCA 44 (CanLII), 1094 APR 251, per Bell JA (3:0)
  2. ↑ R v Munoz, 2006 CanLII 3269 (ONSC), 205 CCC (3d) 70, at paras 23 to 28
    R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 98 ("There the court describes that drawing of inferences as a product of inductive reasoning which derives conclusions based on the uniformity of prior human experience. An inference is a deduction of fact which may be logically or reasonably drawn from another set of established facts. However, it is a conclusion that may, not must, be drawn, depending on the court’s weighing of the whole of the evidence.")
    R v Pastro, 2021 BCCA 149 (CanLII), per Fitch JA, at para 52
    Watt’s Manual of Criminal Evidence 2023 at para 12.01 ("An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.")
  3. ↑ Wheyee, ibid., at para 98
  4. ↑ Wheyee, supra, at para 99 ("Drawing inferences can be described as a two-step process. The first step is to find that the facts from which the inference is to be drawn have been proven in the trial. If not then any inference is of necessity nothing more than speculation. The second step is to make an inference from the proven facts that is reasonable, rational and logical")
    R v Morrissey, 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193, per Doherty JA
  5. ↑ R v Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, per Cromwell J
  6. ↑ R v To, 1992 CanLII 913 (BCCA), 17 WCB (2d) 47, per McEachern CJ
    see also RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, per LaForest J, at paras 84 to 87
  7. ↑ JC, infra, at paras 59 to 60
  8. ↑ R v JC, 2021 ONCA 131 (CanLII), per Paciocco JA, at para 58 (“judges must avoid speculative reasoning that invokes ‘common‑sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice”)
    R v ARD, 2017 ABCA 237 (CanLII), 353 CCC (3d) 1, per curiam (2:1), at paras 6 to 9, 28, 43–44, 71, aff’d 2018 SCC 6(complete citation pending)
    R v Paulos, 2018 ABCA 433 (CanLII), 79 Alta LR (6th) 33, per curiam, at paras 26 to 29, 34, 39(complete citation pending)
    R v CMM, 2020 BCCA 56 (CanLII), BCJ No 208, per DeWitt‑Van Oosten JA, at paras 138 to 139
    R v Kodwat, 2017 YKCA 11 (CanLII), YJ No 36, per Willcock JA, at paras 27 to 28, 41(complete citation pending)
  9. ↑ R v Latif, [2004] OJ No 5891(*no CanLII links) , at para 4
  10. ↑ R v DC, 2012 SCC 48 (CanLII), [2012] 2 SCR 626, per McLachlin CJ, at para 27
    R v Mustard (G), 2016 MBCA 40 (CanLII), per Mainella JA (2:1), at para 31
  11. ↑ Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 (UK)
  12. ↑ Wheyee, supra, at para 99 (" Drawing inferences can be described as a two-step process. The first step is to find that the facts from which the inference is to be drawn have been proven in the trial. If not then any inference is of necessity nothing more than speculation.")
  13. ↑ R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para 106
    R v Morrissey, 1995 CanLII 3498 (ON CA), [1995] OJ No 639 (CA), per Doherty JA (3:0), at para 52
  14. ↑ Morrissey, ibid., at para 52
    R v McIver, 1964 CanLII 248 (ONSC), [1964] OJ No 835, per McRuer J, at para 9
  15. ↑ R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303, per Evans JA, 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. (UK), 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 BCSC 119 (CanLII), [2001] BCJ No 3000, per Romilly J, at para 19: ("The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.")
  16. ↑ R v Katwaru, 2001 CanLII 24112 (ON CA), [2001] OJ No 209, per Moldaver JA (3:0), at para 40

Types of Inferences

Inferences of mens rea

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

Inferences of circumstantial cases

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

Hodge's Rule

Hodge's rule does not apply to determine the mens rea of an offence.[1]

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."[2]

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.[3]

A judge may infer an intention to destroy evidence inconsistent with non-intentional death where the accused is found burning a body.[4]

Inferences of Authorship

The authorship of a communication such as a text message can be inferred circumstantially through various sources, including:[5]

  • source of communication
  • access to account
  • content of communications disclosing info known to select persons
  • nature and character of the exchanges.

When considering inculpatory statements of the accused the analysis should separate the question of identity from the probative value of the statement in support of a conviction.[6]

Equal Alternatives and Juries

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.[7]

Possession

The discovery of a item in a vehicle can create a presumption to infer possession by the driver.[8]

Evidence of Habit

Evidence of habitual or business practice can be sufficient to allow the inference that the events happened according to that practice.[9]

  1. ↑ R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J
    R v Cooper, 1977 CanLII 11 (SCC), [1978] 1 SCR 860, per Ritchie J
  2. ↑ R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA (3:0), at para 21
    see also R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438, per Moldaver J (7:0), at para 64 (“a person usually knows what the predictable consequences of his or her actions are, and means to bring them about”")
    R v Dalen, 1978 CanLII 2311 (SK QB), 44 CCC (2d) 228, per Geatros J
  3. ↑ R v Brodeur, 2014 NBCA 44 (CanLII), 1094 APR 251, per Bell JA (3:0)
  4. ↑ R v Calnen, 2019 SCC 6 (CanLII), [2019] 1 SCR 301, per Moldaver J
  5. ↑ R v Durocher, 2019 SKCA 97 (CanLII), SJ No 367, per Schwann JA, at para 47 ("R v J.V., 2015 ONCJ 837, held that, for the purposes of the Evans test, authorship can be inferred circumstantially through “such things as the source of the information, access to the relevant email or social media address, the disclosure of details known to the purported author and the nature of the exchanges between the parties …” (at para 3).")
  6. ↑ R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653, per Sopinka J ("...in respect of the authenticity of admissions... [i]f there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.")
  7. ↑ R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, per Major J (7:0), at #par28 para 28
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129, per Major J (7:0), at pp. 145 and 147
  8. ↑ R v Nicholson, 2011 ABCA 218 (CanLII), 510 AR 308, per curiam, 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”)
    cf. R v Lincoln, 2012 ONCA 542 (CanLII), 106 WCB (2d) 58, per curiam (3:0)
  9. ↑ R v Shams, 2017 MBCA 116 (CanLII), per Mainella JA (3:0), at para 5
    Thompson, 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), 9 WWR 585 , per Hamilton JA, at para 64
    R v Ashmore, 2011 BCCA 18 (CanLII), 267 CCC (3d) 108, 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 and Post-Offence Conduct

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]

Burden

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

Post-Offence Conduct

See Post-Offence Conduct (or "after-the-fact conduct")

  1. ↑ R v Griffin, 2009 SCC 28 (CanLII), [2009] 2 SCR 42, per Charron J, at para 33
  2. ↑ R v Pryce, 2014 BCCA 370 (CanLII), 361 BCAC 301, per Lowry JA (3:0), at para 10

Inference at Preliminary Inquiry

Conjecture and Speculation

A conjecture is a plausible conclusion that does not have a "compelling evidentiary foundation."[1] It is essentially a "guess."[2]

Rule Against Ungrounded Common-Sense Assumptions

Judge must avoid speculative reasoning based on "common-sense" assumption not grounded in evidence or judicial notice.[3]

A court may not use speculative or conjectural conclusions.[4]

Speculation vs Inference

The difference between conjecture and inference is not a clear one.[5]

An inference is a "deduction of fact that may logically and reasonably be drawn" from objective facts found at trial.[6] Speculation is when the judge theorizes without evidentiary support or where a conclusion is drawn in absence of proven fact.[7]

Where a judge engages in speculation, there may be grounds of appeal where the speculation rises to the level of misapprehension of evidence.[8]

The difference between an inference and mere speculation is considered a fine line to distinguish.[9]

Example

In an 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."[10]

It is impermissible to speculate explanations that are "flatly contradicted" by the accused's own evidence.[11]

  1. ↑ R v Bampoe, 2013 ONCJ 355 (CanLII), per Zuker J
  2. ↑ Jones v Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.) (UK)
  3. ↑ R v JC, 2021 ONCA 131 (CanLII), 70 CR (7th) 38, per Paciocco JA, at para 58 ("The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice")
    R v Roth, 2020 BCCA 240 (CanLII), 66 CR (7th) 107, per DeWitt‑Van Oosten JA, at para 65
    2019 ONCA 541, at paras 19 to 27
    R v Perkins, 2007 ONCA 585 (CanLII), 223 CCC (3d) 289, per Doherty JA, at paras 35 to 36
  4. ↑ R v Fuller (1971), 1 N.R. 112 at 114(*no CanLII links) per Hall JA, ("[t]he tribunal of fact cannot resort to speculative and conjectural conclusions")
    See also R v Fuller, 1973 CanLII 196 (SCC), [1975] 2 SCR 121, per Judson J (5:0) at 123
  5. ↑ Jones v Great Western Railway Co, supra
  6. ↑ R v Chanmany, 2016 ONCA 576 (CanLII), 338 CCC (3d) 578, per curiam, at para 45 ("An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish.")
  7. ↑ Chanmany, ibid., at para 45
  8. ↑ Chanmany, supra, at para 46
  9. ↑ See Watt's Manual of Evidence, 2011 (toronto, Carswell, 2011), at p. 104 as cited in R v Balendran, 2012 ONSC 4016 (CanLII), per Dawson J, at para 19
  10. ↑ R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d) 364, per Monnin JA
  11. ↑ R v Grover, 2007 SCC 51 (CanLII), [2007] 3 SCR 510, per curiam, at para 3

Stereotypical Assumptions

A judge must avoid speculation that is cloaked in "common sense" assumptions not supported by evidence or judicial notice.[1]

While the application of common sense and human experience of personal behaviour is permitted. The line is drawn where the judge "introduce[s] new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour." [2]

Reliance on Stereotypical Inferences

Credibility findings cannot be based on "stereotypical inferences."[3]

It is an error in law to rely on stereotypes or erroneous common-sense assumptions.[4] This is particularly true when it comes to stereotypes around sexual assault[5] and how an accused is "expected" to act.[6]

Inferences relating to human behaviour become impermissible where they are based on stereotypes or "prejudicial generalizations."[7]

Example

Examples of inappropriate stereotypes include:

  • that a complainant would avoid the assailant or change their behaviour towards the assailant after being sexually assaulted.[8]
  • women would not act in a sexually aggressive manner[9]
  • that men would be interested in sex<Ref.

JC, supra at para 656 </ref>

Evidence Capable of Supporting Stereotypes

The evidence capable of supporting stereotypical inferences is not prohibited or inadmissible. It is not an error to rely on such evidence. [10] It only becomes inadmissible when it is adduced solely to advance a stereotypical inference.[11]

Direct Evidence Corroborating Stereotypes

The rule against stereotypical inferences does not prohibit direct evidence establishing facts that "logically reflect a stereotype."[12]

Appellate Review

Use of such stereotypical assumptions is only a reversable error where it was used to "reach a material factual conclusion based on such reasoning."[13] An error is "based" on a stereotype when it plays a "material or important role in explaining impugned conclusion.[14] It will not be based on stereotype when the use is merely "incidental."[15]

While findings of fact are permitted deference. The use of stereotypical inferences are errors of law and so are not accorded deference.[16]

  1. ↑ R v JC, 2021 ONCA 131 (CanLII), 70 CR (7th) 38, per Paciocco JA, at para 58
    R v Roth, 2020 BCCA 240 (CanLII), 66 CR (7th) 107, per DeWitt‑Van Oosten JA, at para 65
    R v Cepic, 2019 ONCA 541 (CanLII), 376 CCC (3d) 286, per Benotto JA, at paras 19 to 27
    R v Perkins, 2007 ONCA 585 (CanLII), 223 CCC (3d) 289, per Doherty JA, at paras 35 to 36
  2. ↑ JC, supra at para 61 ("Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.")
  3. ↑ JC, supra, at para 63
  4. ↑ JC, supra, at para 63
  5. ↑ JC, supra, at para 63
    Roth, at para. 129
    R v ABA, 2019 ONCA 124 (CanLII), 372 CCC (3d) 301, per Pardu JA, at para 5
    Cepic, supra, at para 14
  6. ↑ R v Quartey, 2018 ABCA 12 (CanLII), 43 CR (7th) 359 (2:1), at para 21, aff’d 2018 SCC 59, [2018] 3 SCR 687(complete citation pending)
    see also Cepic, supra, at para 24
  7. ↑ JC, supra at para 65
    R v ARD, 2017 ABCA 237 (CanLII), 353 CCC (3d) 1, per curiam (2:1), at paras 6 to 7, aff’d 2018 SCC 6, [2018] 1 SCR 218
  8. ↑ JC, supra, at para 66
    ARD, supra, at para 57
    ABA, supra, at paras 6, 8-10
    R v Caesar, 2015 NWTCA 4 (CanLII), 588 AR 392 per The Court, at para 6
  9. ↑ JC, supra, at para 66
  10. ↑ JC, supra, at paras 68 to 69
  11. ↑ JC, supra, at paras 69 to 70
  12. ↑ JC, supra, at para 70
  13. ↑ JC, supra, at para 71
  14. ↑ JC, supra, at para 73
  15. ↑ JC, supra, at para 73
  16. ↑ JC, supra, at para 74

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), 293 CCC (3d) 541, per Watt JA, at para 45
    R v NLP, 2013 ONCA 773 (CanLII), 305 CCC (3d) 105, per Lauwers JA (3:0), 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] SCJ No 28, per Binnie J (5:0), at para 27
    R v Lapensee, 2009 ONCA 646 (CanLII), [2009] OJ No 3745, per O'Connor ACJ, at para 41
  3. ↑ Ellis, supra, at para 46
  4. ↑ Ellis, supra, at para 46
    McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at p. 264
  5. ↑ Jolivet, supra, at para 26; Wigmore on Evidence (Chadbourn Rev., 1979), Vol. 2, at para 290
  6. ↑ Ellis, supra, at para 48
    R v Lapensee, 2009 ONCA 646 (CanLII), 99 OR (3d) 501, per O'Connor ACJ, at para 42
    R v Rooke, 1988 CanLII 2947 , per Craig JA, at pp. 512-513
  7. ↑ NLP, supra, at para 59
  8. ↑ Ellis, supra, at para 49
    Lapensee, supra, at para 45
    R v Zehr, 1980 CanLII 2964 (ON CA), 54 CCC (2d) 65, per Brooke JA, at p. 68
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