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Evidence - Circumstantial Evidence
MORE CASES
Part 2
. R. v. Firlotte
In R. v. Firlotte (Ont CA, 2023) the Court of Appeal considered a 'Villaroman' circumstantial evidence argument on appeal:[25] The appellant contends that the verdict was unreasonable in two ways. First, he asserts a Villaroman error (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000): that the trial judge failed to consider the available and competing rational inference that the appellant did not know that the bodily harm he inflicted was likely to be fatal, thereby lacking subjective foresight of death. ...
The Alleged Villaroman Error
[26] In assessing this ground of appeal the court must determine whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered on any reasonable view of the evidence. The appellate court is required to review and analyze the totality of the evidence within the limits of appellate disadvantage. Where the Crown’s case is circumstantial, the question 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”: Villaroman, at para. 55. Appellate review must focus on the totality of the evidence – individual items of evidence “are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone”: R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Wu, 2017 ONCA 620 at para. 15.
[27] The appellant submits that the verdict was unreasonable because there was evidence that undermined the conclusion that he knew that death was likely to result from his conduct. The appellant points specifically to the evidence of the pathologists that the victim’s injuries were not themselves fatal, and that he would have been alive when he was left in the field. The appellant submits that, given that the victim’s death was caused in part by factors that were not known to him (the victim’s enlarged heart) or that he might not have appreciated (the victim’s ingestion of drugs, the effects of hypothermia), there was a rational, available inference that he did not foresee death as a likely consequence of his actions.
[28] I would not give effect to this ground of appeal. The question here is not whether there was an available alternative inference, but whether the verdict is supportable on any reasonable view of the evidence.
[29] In R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, this court considered and rejected the argument made here, that because the evidence was that none of the individual actions in which the appellant was involved was sufficient to cause death, the finding of intent under s. 229(a)(ii) of the Criminal Code was unreasonable. The court stated at para. 167:To determine whether an unlawful killing amounted to murder, a trier of fact takes into account all the circumstances surrounding the killing and decides whether the Crown has proven beyond a reasonable doubt that the killer had a state of mind required to make that unlawful killing murder. The appellant’s argument on this branch of the unreasonable verdict ground treats the pathological evidence of the unlikelihood of death as dispositive of the proof of the fault element required to make an unlawful killing murder. Although the expert evidence may be of some assistance on this issue, it is not dispositive of it. The objective likelihood of death from a blow is at best a factor for jurors to consider in determining the state of mind of the killer. It does not, indeed cannot, render a conclusion drawn by the trier of fact from all the evidence that the Crown has proven the state of mind necessary to make an unlawful killing murder, unreasonable as the appellant argues. [30] Similarly, in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, the verdict was not unreasonable although there was expert evidence that the respondent’s stomping on the victim was unlikely to have caused his fatal injuries. The Supreme Court noted that it was not unreasonable for the jury to conclude that in deciding to stomp not once, but twice, on the victim’s head, the respondent’s purposive, deliberate and intentional conduct which involved the repeated use of violence against a defenceless man, established that he must have known it was likely to cause death, being reckless as to whether or not death ensued: at para. 49.
[31] The cause of death and other evidence of the pathologists did not speak directly to the issue that the trial judge had to decide; nor did such evidence undermine any of the factors that supported a conviction. The pathologists’ evidence was that Mr. Bailey’s blunt and sharp force injuries were not fatal on their own, however, in determining the appellant’s state of mind the trial judge was not required to focus on the injuries the appellant caused on their own, but to consider all of the circumstances. “An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred”: R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 132.
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[37] All of these circumstances were consistent with the conclusion that the appellant and his accomplice had engaged in a violent and prolonged attack on a defenceless victim who had effectively been “left for dead” in freezing temperatures with no prospect of aid or assistance. While the appellant would not necessarily have known of some of the factors that contributed to the victim’s death, it was a reasonable conclusion that the appellant intended to cause harm that the appellant knew would likely kill the victim. In my view, the finding of mens rea was reasonably available on this evidence. . R. v. Davidov
In R. v. Davidov (Ont CA, 2023) the Court of Appeal considered the evidentiary use put to pre-trial exculpatory statements made to police, which were not adduced in the Crown's case, but were cross-examined on in the defence's case. The defence argued successfully that the court applied the inconsistencies exposed in cross-examination to truth-finding as circumstantial evidence, not just to credibility impeachment (though the error was allowable under the curative proviso):[5] The appellant submits the trial judge made two related errors in how she used the evidence of those inconsistencies.
[6] First, the appellant submits, and the Crown agrees, that while the trial judge could use such inconsistencies as part of her assessment of the appellant’s credibility, such inconsistencies could not ground inferences about the appellant’s guilt: R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90, at para. 46; R. v. Kiss, 2018 ONCA 184, at para. 49. The appellant argues the trial judge committed a legal error by using those inconsistencies for the improper purpose of inferring the appellant knew of the illegal importation scheme and participated in it.
[7] Second, and relatedly, the appellant submits, and again the Crown agrees, that: (i) the law draws a distinction between statements or testimony by an accused that are disbelieved and rejected, and those that are found to be fabricated in an effort to avoid culpability; (ii) only the latter can be considered as circumstantial evidence of guilt; and (iii) to find that a statement was fabricated, there must be independent evidence that the exculpatory statement was deliberately made for the purpose of avoiding culpability: R. v. U.K., 2023 ONCA 587, at paras. 71-72.
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[10] We are not persuaded the impugned passages in the trial judge’s reasons are amenable to the interpretation advanced by the Crown. In our view, the passages disclose that the trial judge committed legal error by improperly using some of the inconsistencies between the appellant’s statement to the police and his evidence at trial to infer he knew of and participated in the importation scheme. . R. v. Marrone
In R. v. Marrone (Ont CA, 2023) the Court of Appeal considers circumstantial evidence, here in a criminal context:[26] .... Where the Crown’s case depends on circumstantial evidence, the question becomes 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”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55 (citations omitted).
[27] In a circumstantial case, the trier of fact is required to consider other plausible theories and reasonable possibilities inconsistent with guilt, provided they are “based on logic and experience applied to the evidence or the absence of evidence, not on speculation”. But the Crown does not need to negative every possible conjecture which “might be consistent with the innocence of the accused”: Villaroman, at para. 37.
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[31] The drawing of inferences from circumstantial evidence, and the evaluation of whether there is a reasonable inference other than guilt, are quintessentially fact-finding endeavours. In my view, the evidence was such that a reasonable trier of fact could find guilt to be the only reasonable conclusion on all the evidence. . R. v. Williamson
In R. v. Williamson (Ont CA, 2023) the Court of Appeal considers the leading circumstantial evidence case of Villaroman:[30] As Cromwell J. stated in Villaroman, the trier of fact should convict only if “an inference of guilt drawn from circumstantial evidence [is] the only reasonable inference that such evidence permits”: at para. 30. Such a conclusion may be reached only after considering “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: at para. 37. These alternatives to guilt may arise from the evidence or from a lack of evidence, since the Crown and not the accused bears the burden to prove facts and “whether there is a reasonable doubt is assessed by considering all of the evidence”: at paras. 35-36. “If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: at para. 35. . R. v. Oake
In R. v. Oake (Ont CA, 2023) the Court of Appeal considered the use of circumstantial evidence in a criminal case:[10] The Crown’s case on that issue was circumstantial. The trial judge correctly recognized that, consistent with the Supreme Court’s holding in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37, he could not find that the accused had knowledge of the child pornography unless that was the only reasonable inference available from the evidence as a whole. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considers circumstantial evidence doctrine [Villaroman]:[29] Villaroman instructs at para. 35, that accused persons should not be required to prove facts to support explanations other than guilt. They are entitled to be acquitted if there is a reasonable doubt left after considering all of the evidence. “If there are reasonable inferences other than guilt [remaining in a circumstantial case], the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: Villaroman, at para. 35. It is a legal error for a trial judge to render a decision based on an erroneous statement or understanding of the Villaroman principles. However, even if a trial judge has not done so, a trial judge will have rendered an unreasonable verdict, contrary to s. 686(1)(a)(i) of the Criminal Code, by inferring guilt in circumstances were a reasonable jury, properly instructed and acting judicially could not have concluded on the evidence as a whole that no inferences consistent with innocence remain open. Put simply, a conviction secured in violation of the Villaroman principle is an unreasonable verdict, satisfying the test for unreasonable verdicts identified in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 185-87, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. . R. v. Austin
In R. v. Austin (Ont CA, 2023) the Court of Appeal considered the circumstantial evidence doctrine of R v Villaroman, where an issue is the availability of 'innocent inferences':[5] Although the trial judge did not cite the principles in Villaroman, and although he spoke in terms of reasonable inculpatory inferences that “can be” drawn, when his reasons are read as a whole it is clear that he was satisfied, as Villaroman, at para. 30 requires, that guilt was the only reasonable inference on this record. The trial judge described the inferences of guilt not only as reasonable but also as “compelling”, saying that he accepted them, and he concluded that the inferences of innocence advanced by the appellant amounted to “impermissible speculation”. After reciting the circumstantial case, he said: “The reasonable and permissible inference to be made from this is that – and considering everything else in the evidence – is that they had an agreement to jointly benefit from this fraud” (emphasis added). The trial judge therefore applied the Villaroman standard by finding that guilt was the only reasonable inference.
[6] Although the appellant disclaimed advancing an unreasonable verdict appeal – conceding in submissions that the circumstantial case provided a path to conviction – he argued that there was no evidence supporting the trial judge’s finding that the appellant and the general manager “had an agreement to jointly benefit from this fraud.” We disagree. On this record, that inference was a reasonable one, as was the finding that the Crown proved the appellant’s guilt beyond a reasonable doubt. Circumstantial inferences are based on common sense and experience, and common sense and experience support the conclusion the trial judge arrived at. The prospect that the general manager would, without the appellant’s knowledge and participation, pilfer more than $150,000 from his employer using a false corporate name that reflects the appellant’s initials, and then put that money under the exclusive control of the appellant by making successive payments to the appellant by cheques payable in the name of a company that the appellant had no business relationship with, thereby providing most of the funds that went through the appellant’s bank account during the relevant period, would give rise to a “frivolous” and not a “reasonable” doubt. And as R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, instructs at para. 39, “a reasonable doubt is not an imaginary or frivolous doubt.” Moreover, parties to a fraud tend not to participate gratuitously. The inference that there was an agreement for a joint benefit of some kind was a reasonable one on the evidence before the trial judge.
[7] To be sure, a reasonable doubt can arise from the absence of evidence or the insufficiency of proof, even where the evidence itself does not point affirmatively to a scenario that is inconsistent with guilt: Villaroman, at paras. 35,36. And there was an absence of evidence establishing a connection between the appellant and the general manager, or a particular agreement to share the proceeds of the fraud, or that the proceeds were actually shared. However, these gaps in the evidence were shortcomings in the narrative of events and not gaps in proof of the essential elements of the offence. As explained, the evidentiary record did yield a powerful inference that proved what the Crown required, namely, that the appellant was a joint participant in the fraud and theft.
[8] Relatedly, the trial judge’s conclusion that the innocent inferences that the appellant advanced were speculative was an appropriate characterization, not an unexplained or improper finding, as the appellant contends. As we have emphasized, an inference that the appellant innocently received the funds is not a reasonable one given that any such prospect would be contrary to human experience, given the evidence before the trial judge. We recognize that the prospect that the appellant was himself being defrauded is not entirely impossible but again, as Lifchus confirms at para. 39, “it is virtually impossible to prove anything to an absolute certainty” and proof beyond a reasonable doubt does not require it. We are persuaded that it would be speculative for a trier of fact, in the absence of supporting evidence, to base a reasonable doubt on a remotely possible scenario that contravenes all reasonable expectations, and that is what the appellant’s inferences of innocence amount to. The trial judge was entitled to view the appellant’s submissions through this lens, and to conclude that the unsupported exculpatory inferences offered were speculative. . Polifroni v. Ontario Racing Commission #2
In Polifroni v. Ontario Racing Commission #2 (Ont Div Ct, 2013) the court endorsed as reasonable a tribunal's fact-findings made entirely on circumstantial evidence.
. R. v. Chu
In R. v. Chu (Ont CA, 2023) the Court of Appeal considered the treatment of circumstantial evidence, here in a criminal appeal:[3] The appellant first argues that the trial judge considered the circumstantial evidence in a piecemeal fashion, rather than considering its cumulative effect, contrary to the principles established in cases such as R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354-55, 358; R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, at pp. 75-77; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31; R. v. Uhrig, 2012 ONCA 470, 102, at para. 13. In particular, the appellant argues that the trial judge considered individual pieces of evidence, such as the surveillance evidence, and then removed them from consideration – “cast them aside”, in the words of counsel for the appellant – before she considered the evidence of the seizures.
[4] We are not persuaded that the trial judge committed the legal error of considering the evidence in a piecemeal manner.
[5] The trial judge was alive to the obligation to consider the circumstantial evidence as a whole and its cumulative effect. She expressly instructed herself on the following inter-related legal principles: (1) that it is the cumulative effect of circumstantial evidence that must be considered against the reasonable doubt standard; (2) that circumstantial evidence is not to be assessed on a piecemeal basis; and (3) that the burden of proof beyond a reasonable doubt does not apply to individual pieces of evidence. In giving this self-instruction, the trial judge referred to the decisions of this court in Uhrig, at para. 13, and R. v. Wu, 2017 ONCA 620, 141 W.C.B. (2d) 43, at para. 15.
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[11] After providing a detailed summary of all of the trial evidence and instructing herself on the applicable law, the trial judge began her analysis of the evidence by discussing a number of aspects of the evidence which she described as “limitations” of the surveillance evidence and the expert evidence. In substance, in this portion of the reasons, the trial judge identified gaps in the evidence. The fact that the trial judge addressed the weaknesses of particular areas of evidence does not indicate that the sum total of her analysis was looking at individual pieces of evidence in isolation. As this court recognized in R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70, at para. 32, it is often necessary to consider the significance of individual pieces of evidence before their cumulative effect can be considered. . R. v. Bakal
In R. v. Bakal (Ont CA, 2023) the Court of Appeal considered the requirements of circumstantial evidence:[32] The trial judge noted that this was a circumstantial case and that in such cases, the trier of fact must be satisfied that the appellant’s guilt is the only reasonable conclusion available on the totality of the evidence.
[33] She noted that she must consider other “plausible theories” inconsistent with guilt that are available on the evidence or absence of evidence, though the Crown need not “negative every possible conjecture”: Villaroman, at paras. 36-38, 55, citing, at para. 37, R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. However, citing R. v. S.B.1, 2018 ONCA 807, 367 C.C.C. (3d) 22, at para. 134, she noted that “a trier of fact should not act on an inference that it considers unreasonable, and an alternative inference must be reasonable, not just possible”.
[34] In so doing, she understood that the basic question in reviewing circumstantial evidence is to decide whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38.
[35] A trial judge’s rejection of an alternative theory inconsistent with guilt does not necessarily mean that there was a Villaroman error; it may mean that there was no reasonable inference other than guilt, given the evidence or lack of evidence and in light of human experience and common sense: S.B.1, at para. 138.
[36] It is ultimately for the trier of fact to determine if a proposed inference is reasonable enough to raise a doubt: Villaroman, at paras. 42 and 56. Deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt: R. v. Petrolo, 2021 ONCA 498, at para. 22, citing S.B.1, at para. 139. “An appellate court is justified in interfering only if the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable.”: R. v. Loor, 2017 ONCA 696, at para. 22. . R. v. Wood
In R v Wood (Ont CA, 2022) the Court of Appeal commented succinctly on the nature of circumstantial evidence [Watt JA]:[76] The final point concerns circumstantial evidence. Like any item of evidence, circumstantial evidence must be relevant, material, compliant with any applicable admissibility rule and more probative than prejudicial. Circumstantial evidence is all about inferences. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. Inferences arise from objective facts that give rise to those inferences. Absent such facts from which the inferences may be drawn, no inference arises, only impermissible speculation and conjecture. . R v Gibson
In R v Gibson (Ont CA, 2021) the Court of Appeal considered several points about circumstantial evidence in a criminal appeal:[76] First, circumstantial evidence is all about inferences. Individual items of circumstantial evidence give rise to a range of inferences. The available inferences must be reasonable according to the measuring stick of human experience. That there may be a range of inferences available from an individual item of circumstantial evidence does not render the item of evidence irrelevant or neutralize its probative value: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112, per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 26, 333 C.C.C. (3d) 534, at para. 77.
[77] A second point concerns the standard of proof required where proof of the offence or one or more of its essential elements depends wholly or substantially on circumstantial evidence. In such a case, an inference of guilt drawn from circumstantial evidence must be the only reasonable inference available on that evidence: R. v. Villaroman, 2016 SCC 33, at paras. 30, 32-34.
[78] Third, the standard of proof applies to the evidence taken as a whole, not to each individual item of circumstantial evidence: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 359, 362. See also R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295-96.
[79] Finally, where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. . R. v. Stennett
In R. v. Stennett (Ont CA, 2021) the Court of Appeal (Watt JA) considered the requirements of circumstantial evidence:[59] Fourth, circumstantial evidence and the burden and standard of proof.
[60] Circumstantial evidence is about drawing inferences and the range of reasonable inferences that may be drawn from that evidence. In an assessment of circumstantial evidence, a trier of fact is required to consider, or be directed to consider, “other plausible theories” and “other reasonable possibilities” inconsistent with guilt. In its effort to establish guilt, the Crown must negate those “reasonable possibilities”. However, the Crown need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. These “other plausible theories” or “other reasonable possibilities” must be rooted in logic and experience applied to the evidence or absence of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. See also R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8.
[61] Circumstantial evidence does not have to totally exclude other conceivable inferences. The trier of fact must not act on alternative interpretations of the circumstances that it considers unreasonable. Alternative inferences, whether arising from the evidence or an absence of evidence, must be reasonable, not simply possible: Villaroman, at para. 42. Non-culpable inferences, based on the evidence or the absence of evidence, must be reasonable when assessed logically and in light of human experience and common sense: Villaroman, at para. 36. . R. v. Aslami
In R. v. Aslami (Ont CA, 2021) the Court of Appeal commented on the requirements of circumstantial evidence in a criminal case:[47] As I noted at the outset, this was an entirely circumstantial case. Consequently, the trial judge was required to follow the analytical route set out in Villaroman, where Cromwell J. said, at para. 37:When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.] [Emphasis in original.] [48] The trial judge purported to comply with this approach, but it is clear that he did not do so. He said that he could see “no other ‘plausible theories/reasonable possibilities’ other than that of the guilt of [the appellant.]” It seems likely that it was the errors, to which I have referred above, that caused him to reach that conclusion.
[49] It also seems likely that that conclusion was the result of the trial judge not considering the evidence as a whole. Viewing the evidence as a whole is a critical part of its necessary evaluation, especially in a circumstantial case, in determining whether it proves guilt beyond a reasonable doubt. As Watt J.A. said in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81: “It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof” (citations omitted).
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