Inferences

From Criminal Law Notebook

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]

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."[7]

No Conjecture or Speculation

They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.[8]

Inferences that are drawn without evidence is mere speculation.[9]

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.

An inferred fact must be one that is "reasonably and logically drawn from a fact or group of facts established by the evidence."[10] An inference that does not properly flow from the established fact is mere conjecture and speculation.[11] 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".[12] The inference does not need to flow "easily" from those facts.[13]

Hodge's Rule

Hodge's rule does not apply to determine the mens rea of an offence.[14]

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."[15]

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.[16]

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.[17]

Possession

The discovery of a item in a vehicle can create a presumption to infer possession by the driver.[18]

Evidence of Habit

Evidence of habitual or business practice can be sufficient to allow the inference that the events happened according to that practice.[19]

  1. ↑ R v Brodeur, 2014 NBCA 44 (CanLII), per Bell JA (3:0)
  2. ↑ R v Munoz, (2006) 2006 CanLII 3269 (ON SC), 205 CCC (3d) 70 , at paras 23-28
    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.")
  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), 1995 CanLII 3498 (ON CA), 22 OR (3d) 514 (Ont. CA)(complete citation pending)
  5. ↑ R v Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII), per Cromwell J
  6. ↑ R v To, 1992 CanLII 913 (BCCA), per McEachern CJ
    see also RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC), per LaForest J, at paras 84 to 87
  7. ↑ R v Latif, [2004] OJ No 5891(*no CanLII links) , at para 4
  8. ↑ Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722
  9. ↑ 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.")
  10. ↑ 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
  11. ↑ Morrissey, ibid., at para 52
    R v McIver, 1964 CanLII 248 (ON SC), [1964] OJ No 835, per McRuer J, at para 9
  12. ↑ 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., at p. 169 ("...inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.")
    R v Lukianchuk, [2001] BCJ No. 3000, 2001 BCSC 119 (CanLII), 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.")
  13. ↑ R v Katwaru, 2001 CanLII 24112 (ON CA), [2001] OJ No 209, per Moldaver JA (3:0), at para 40
  14. ↑ R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J
    R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J
  15. ↑ R v Missions, 2005 NSCA 82 (CanLII), 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”")
  16. ↑ R v Brodeur, 2014 NBCA 44 (CanLII), per Bell JA (3:0)
  17. ↑ R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, per Major J (7:0), at para 28
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129, per Major J (7:0) at pp. 145 and 147
  18. ↑ R v Nicholson, 2011 ABCA 218 (CanLII), 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), per curiam (3:0)
  19. ↑ R v Shams, 2017 MBCA 116 (CanLII), per Mainella JA (3:0), at para 5
    R v Thompson (2001), 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339, per Morden JA, at para 9 (Ont CA)
    Gerelus v Lim et al, 2008 MBCA 89 (CanLII), per Hamilton JA, at para 64
    R v Ashmore, 2011 BCCA 18 (CanLII), per Frankel JA, at para 61, leave refused
    Hill, Strezos & Tanovich, Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada, 2013) (loose-leaf updated 2017, release 2) Part VI at ch 31:60.50 (online: WestlawNextCanada)

Inference of Guilt

See also: Circumstantial Evidence

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

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

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

Inference at Preliminary Inquiry

Conjecture and Speculation

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

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

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

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

In 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". [6]

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


  1. ↑ Jones v Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.)
  2. ↑ See Watt's Manual of Evidence, 2011 (toronto, Carswell, 2011), at p. 104 as cited in R v Balendran, 2012 ONSC 4016 (CanLII), per Dawson J, at para 19
  3. ↑ R v Bampoe, 2013 ONCJ 355 (CanLII), per Zuker J
  4. ↑ Jones v Great Western Railway Co
  5. ↑ R v Fuller (1971), 1 N.R. 112 at 114(*no CanLII links) , ("[t]he tribunal of fact cannot resort to speculative and conjectural conclusions")
    See also 1973 CanLII 196 (SCC), [1975] 2 SCR 121, per Judson J (5:0) at 123
  6. ↑ R v Jenner, 2005 MBCA 44 (CanLII), (2005), 195 CCC (3d) 364 (M.C.A.), per Monnin JA
  7. ↑ R v Grover, 2007 SCC 51 (CanLII), per curiam, at para 3

Statutory Inferences

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

Adverse Inferences

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

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


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

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

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

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

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

  1. ↑ R v Ellis, 2013 ONCA 9 (CanLII), per Watt JA, at para 45
    R v NLP, 2013 ONCA 773 (CanLII), 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] S.C.J. 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 para 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 O.R. (3d) 501, per O'Connor ACJ, at para 42
    R v Rooke, 1988 CanLII 2947 (BC CA), (1988), 40 CCC (3d) 484 (BCCA), 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), 54 CCC (2d) 65 (Ont. C.A.), 1980 CanLII 2964 (ON CA), per Brooke JA, at p. 68
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