Inferences

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

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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.

An inference is a deduction of fact based on "inductive reasoning" using logic, reasonability and human experience. 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.

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." This does not mean however that the absence of evidence cannot be used to draw inferences when considered in the context of guilt.

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

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

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."

No Conjecture or Speculation

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

Inferences that are drawn without evidence is mere speculation.

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." An inference that does not properly flow from the established fact is mere conjecture and speculation. 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." The inference does not need to flow "easily" from those facts.

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.

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."

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.

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

Inferences of Authorship

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

• 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.

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.

Possession

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

Evidence of Habit

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

Inference of Guilt

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.

Burden

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

Post-Offence Conduct

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

Inference at Preliminary Inquiry

• Preliminary Inquiry Evidence

Conjecture and Speculation

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

Rule Against Ungrounded Common-Sense Assumptions

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

A court may not use speculative or conjectural conclusions.

Speculation vs Inference

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

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

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

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

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."

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

Stereotypical Assumptions

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

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."

Reliance on Stereotypical Inferences

Credibility findings cannot be based on "stereotypical inferences."

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

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

Example

Examples of inappropriate stereotypes include:

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

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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. It only becomes inadmissible when it is adduced solely to advance a stereotypical inference.

Direct Evidence Corroborating Stereotypes

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

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." An error is "based" on a stereotype when it plays a "material or important role in explaining impugned conclusion. It will not be based on stereotype when the use is merely "incidental."

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

Statutory Inferences

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

• s. 153(1.2): inference of sexual exploitation
• s. 351: inference of intent from possession of break-in instruments
• s. 402.2: inference of intent from possession of identification information
• s. 475(2): adverse inference from absconding during trial
• s. 544(2): adverse inference from absconding during preliminary inquiry

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.

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

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" Second, the inference may be drawn where the party failing to call has "exclusive" control over the witness.

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

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

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

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.