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Criminal - Defence Need Not be Based on Evidence. R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court clarifies that defence theories need not be based on evidence, an aspect of the Villaroman circumstantial evidence doctrine:(4) The trial judge did not err in failing to instruct the jury that defence theories do not need to be based on evidence
[111] With respect to jury instructions on circumstantial evidence, trial judges are required to convey that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits and that, in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 36.
[112] Mr. Chizanga asserts that the trial judge erred in not adverting to the second half of the circumstantial evidence equation set out in Villaroman – that theories inconsistent with guilt need not be based on evidence. In failing to articulate this, Mr. Chizanga submits that the jury may have rejected a defence theory (such as Mr. Chizanga being in the washroom but not a participant) on the basis that the defence did not call any evidence on this. This would, in effect, Mr. Chizanga argues, reverse the burden of proof and require him to establish his innocence. Consequently, Mr. Chizanga contends that the instruction on circumstantial evidence should have also included a specific instruction that inferences consistent with innocence need not arise from proven facts.
[113] The trial judge instructed the jury that:When circumstantial evidence is the exclusive means to prove an element of the offence, intent for murder, for example, do not draw the inference too readily. An inference to prove an essential element of the offence should be the only reasonable inference that such evidence permits. You should ask yourself whether there are other reasonable inferences available. If so, the inference urged by the Crown is not the only reasonable inference and proof by the prosecution would fall short. [114] The respondent submits that the instructions on circumstantial evidence were addressed at the pre-charge conference and that the Villaroman instruction was requested by Mr. Chizanga’s counsel. The respondent highlights that the trial judge noted he had already included such an instruction but agreed to include it again, and that experienced trial counsel read the revised draft before it was delivered and voiced no objections when it was delivered. The respondent argues that the instruction did not pose a risk that the jury would have understood it to mean that there was an evidentiary burden on the appellants.
[115] We do not agree that the trial judge’s charge could have led the jury to convict Mr. Chizanga on the basis that he did not prove his innocence. The trial judge, at several key junctures in the charge, clearly instructed the jury that there was no onus on the accused to prove anything and that a reasonable doubt could arise from the evidence or the lack of evidence, and specifically that, “[i]t is not the accused’s job to prove that they are innocent or anything else for that matter.”
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