Inferences

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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.

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

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

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

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

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

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.

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

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

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.

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

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.

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

Inference at Preliminary Inquiry

• Preliminary Inquiry Evidence

Conjecture and Speculation

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

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

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

A court may not use speculative or conjectural conclusions.

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.

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.