Criminal Law Notebook

Circumstantial Evidence

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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 14
    see also Watt's Manual of Criminal Evidence ss. 9.01
    R v Campbell, 2001 CanLII 7064 (ON CA), per Weiler JA, at paras 10 and 11
    R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at para 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")
  2. ↑ R v Griffin, 2009 SCC 28 (CanLII), per Charron J, at para 33
    R v Ngo, 2009 BCCA 301 (CanLII), per Rowles JA, at para 53
  3. ↑ R v SCB, 1997 CanLII 6319 (ON CA), (1997), 104 O.A.C. 81 (CA), per Doherty and Rosenberg JJA, at paras 33 to 36
  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 paras 33-40, 47-8
    R v Yousif, 2011 ABCA 12 (CanLII), per Slatter JA, at para 5
  7. ↑ R v Allen, 2015 BCCA 299 (CanLII), per Donald JA, at para 27
  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 43
  13. ↑ R v Nolet, 2010 SCC 24 (CanLII), per Binnie J, at para 48
    R v Luc, [2007] OJ No 4210 (C.J.)(*no CanLII links) , at paras 36-37
    Sykes, supra, at para 43
  14. ↑ Griffin, supra, at para 33 ("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 15
  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 paras 19 to 24
    R v Pakula, 2017 ABPC 33 (CanLII), per Semenuk J
  19. ↑ R v Villaroman, 2016 SCC 33 (CanLII), per Cromwell J, at para 55

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 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 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.")
  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 12
  3. ↑ R v Moose, 2015 ABCA 71 (CanLII), per curiam, at para 12
  4. ↑ R v Khela, 2009 SCC 4 (CanLII), [2009] 1 SCR 104, per Fish J, at para 58
    see also R v Defaveri, 2014 BCCA 370 (CanLII), 361 B.C.A.C. 301, per Lowry JA, at para 10
    R v Bui, 2014 ONCA 614 (CanLII), 14 C.R. (7th) 149, per Simmons JA, at para 28
  5. ↑ R v Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII), per Cromwell J, at para 35
  6. ↑ Trevor, supra
    R v Smith, 2016 ONCA 25 (CanLII), per Watt JA, at paras 81 to 82
  7. ↑ Smith, ibid., at para 81
  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 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")
  9. ↑ R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para 105
    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 37
  13. ↑ Villaroman, supra, at paras 37 to 38
  14. ↑ R v Piec, 2007 MBCA 138 (CanLII), per Steel JA
  15. ↑ Griffin, supra, at para 33

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 paras 13-15
    R v Munro, 2001 SKQB 138 (CanLII), per Baynton J, at paras 13-14
    R v Trevor, 2006 BCCA 91 (CanLII), per Low JA, at para 12
    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 15
  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 24
    US: Holland v. United States, 348 U.S. 121 (1954)
    UK: McGreevy v. D.P.P. [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 paras 34, 35
  7. ↑ R v Chapman, 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont CA), per Simmons JA, at para 27
    R v Cudjoe, 2009 ONCA 543 (CanLII), per Watt JA, at para 64
    R v Van Osselaer, 2002 BCCA 464 (CanLII), (2002), 167 CCC (3d) 225 (BC CA), per Hall JA, at para 23, 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 paras 97 and 102

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 48
    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 33
    R v Arsenault, 1997 CanLII 1069 (ON CA), [1997] OJ No 3977 (C.A.), per curiam, at para 9
    R v Clark, 1995 CanLII 1474 (ON CA), [1995] OJ No 4036 (C.A.), per curiam, at para 7

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 67 ("Evidence of opportunity typifies the concomitant use of circumstantial evidence")
  2. ↑ Doodnaught, ibid., at para 67
  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 68
    R v Ferianz, [1962] OWN 40 (CA)(*no CanLII links) , at p. 42
  4. ↑ Doodnaught, supra, at para 68
  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 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")
    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 35
  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 27

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 14
    R v Morales, 2006 CanLII 19930 (ON CA), (2006), 81 O.R. (3d) 161 (C.A.), per LaForme JA, at paras 12, 14
  2. ↑ R v De Rojas, 2012 ONSC 3227 (CanLII), per Hill J, at para 88
  3. ↑ e.g. R v Cook, 1978 CanLII 399 (BC CA), (1978), 10 B.C.L.R. 84, per McIntyre JA at 86
    R v Lees, 2009 BCCA 240 (CanLII), per Newbury JA, at para 21
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J, at para 13
    R v Graham, 2013 BCCA 75 (CanLII), per Neilson JA, at para 36 - 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

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