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Evidence - Circumstantial (2). R. v. Shabbir
In R. v. Shabbir (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal defendant's appeal, here from charges of sexual assault.
The court considers concerns about circumstantial evidence (Villaroman), here in relation to a jury charge:[13] The principle behind the decision in Villaroman relates to circumstantial evidence, the drawing of inferences from such evidence and the concern regarding how easily those inferences might be drawn. The concern is that, in engaging in the exercise of drawing inferences, the jury may jump to conclusions. The concern is aptly described in Villaroman by Cromwell J. at para. 26: “There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw.”
[14] Cromwell J. suggested in Villaroman, that a jury instruction could address this concern. He said, at para. 30:It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. . R. v. Mohamed
In R. v. Mohamed (Ont CA, 2024) the Divisional Court considered the basic Villaroman doctrine on circumstantial evidence:[27] When the Crown’s case is based entirely or substantially on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 36-39.
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[29] The trial judge was not required to exclude all possible inferences before relying on circumstantial evidence that Mr. Mohamed had knowledge and control of the cocaine. Rather, he could only find Mr. Mohamed guilty based on circumstantial evidence if he excluded all other reasonable inferences based on the totality of the evidence: Villaroman, at paras. 37, 41-42; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at paras. 60-61. On appeal, this court owes deference to the trial judge’s determination that no other reasonable inferences were available. As such, “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”: Villaroman, at para. 55. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismisses a first-degree murder appeal.
Here the court considers a circumstantial evidence issue:[7] The appellant submits that there are other explanations for the events. He also submits that the circumstances of the shooting, including the presence of witnesses and video cameras, are more consistent with a spontaneous act than a planned and deliberate act. All of that evidence was before the jury for their consideration. Circumstantial evidence does not have to totally exclude other conceivable inferences. It is the role of the jury to decide if any alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22. As Watt J.A. noted in R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 179, leave to appeal refused, [2015] S.C.C.A. No. 498: “The evidence the jury had to consider was entirely circumstantial. Their verdict depended on the inferences they would draw from that evidence taken as a whole. It is a task for which jurors are well, perhaps uniquely, equipped.” . R. v. Rouse
In R. v. Rouse (Ont CA, 2024) the Ontario Court of Appeal considered a Villaroman circumstantial evidence issue:[6] With respect to the second ground of appeal, the alleged “Villaroman error”, an appellate court can interfere only if the trial judge’s conclusion that the evidence excluded any reasonable alternative to guilt was itself unreasonable: R. v. Youssef, 2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, aff’d 2018 SCC 49, [2018] 3 S.C.R. 259. In our view, the trial judge reasonably concluded that the circumstantial evidence excluded any reasonable alternative to the appellant’s guilt on the possessing proceeds of crime count. . R. v. Saunders
In R. v. Saunders (Ont CA, 2024) the Ontario Court of Appeal considered the circumstantial evidence principle that an inference can only be accepted in evidence if it is the only inference available:[17] The appellant’s second ground of appeal is that the verdicts were unreasonable because the evidence as a whole did not eliminate the alternative possibility that some other person had hidden the guns in the storeroom without the appellant’s knowledge. He relies on this court’s observation in R. v. Lights, 2020 ONCA 128, at para. 50, that “occupancy does not create a presumption of possession”, and argues that in view of the evidence suggesting that other people sometimes used the appellant’s recording studio, the possibility that some other person had hidden the guns in the storeroom had not been disproved.
[18] As this court noted in R. v. Abdelrahman, 2022 ONCA 798, at para. 6:[A] trial judge’s assessment of the evidence and ... determination of the inferences to be drawn from circumstantial evidence attract considerable deference on appeal, subject to reversible error. In his reasons, the trial judge properly recognized that he had to consider “the alternative hypothesis ... that someone else hid the weapons without the knowledge and control of [the appellant]”. He concluded that this alternative possibility could be rejected.
[19] We are not persuaded that the trial judge’s conclusion that the appellant had knowledge and control over the guns hidden in the storage room was unreasonable, having regard to the evidence as a whole. It was undisputed that the appellant operated the music studio. He was the only person the police found there when they executed the search warrant, mail addressed to him was found on the floor, and various documents in his name were found in the storage room where the guns were found. Although there was some evidence that other people also sometimes used the music studio, and that some people continued to do so even after the appellant’s arrest and incarceration, it was a reasonably available inference that they did so only with the appellant’s permission.
[20] As the trial judge noted:The weapons and gear found in the studio were of some considerable value and were a legal liability to most people who might possess them. They were clearly and deliberately hidden.
It was open to the trial judge to conclude that some other person would not choose to hide five guns in a place they did not control, in circumstances where they could not prevent the appellant from coming across them, unless they had the appellant’s permission to do so. [21] In these circumstances, we are satisfied that it was reasonably open to the trial judge to conclude as he did that the only reasonable inference was that:[The appellant] was in possession of the weapons as that term is defined by law, which is to say that he knew they were there and he was in control of the studio to the extent that he at a minimum consented to their presence. . 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.” . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court addresses tension perceived to exist between individual circumstantial 'inference' conclusions, and the more general standard of proof principle that a case should be decided on the "cumulative effect of all the evidence":[103] In concluding that Mr. Candusso traded while in possession of Amaya MNPI, the Tribunal majority weighed the totality of the evidence and circumstances. It did not examine individual pieces of evidence in isolation, as Mr. Candusso does in his submissions. Where (as here) arguments are advanced that individual items of circumstantial evidence are explained on bases other than guilt, “it is essential” to keep in mind the cumulative effect of all the evidence. As the Court of Appeal stated in R. v. Uhrig, 2012 ONCA 470, at para 13: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. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction…. [Emphasis added.] [Citation omitted.] [104] I see no reversible error in the Tribunal majority’s findings that Mr. Candusso had opportunity to acquire Amaya MNPI or that his trades were timely, uncharacteristic, risky and profitable. Mr. Candusso clearly had the opportunity to acquire Amaya MNPI from Mr. Kitmitto. They were in daily contact as close friends and roommates. As well, I agree with the OSC that the evidence the Tribunal majority relied on, taken as a whole, supports the findings that Mr. Candusso’s trades were timely, uncharacteristic, risky and profitable: see Merits Decision, at paras. 260(b), (c) and (d).
[105] I also see no error in the Tribunal majority’s reliance on these findings to conclude that Mr. Candusso traded while in possession of Amaya MNPI. The opportunity to acquire MNPI together with timely and profitable trades support that inference: Suman, at para. 302. It does not assist the analysis to suggest that the trades were not as timely, uncharacteristic or risky as they hypothetically could have been. That is not a sufficient basis to show that the Tribunal majority’s findings were clearly wrong, unreasonable, or unsupported by the evidence. I am satisfied that the cumulative effect of all the evidence and circumstances reasonably supports the inferences drawn by the Tribunal majority: Uhrig, at para. 13; Finkelstein v. Ontario (Securities Commission), 2018 ONCA 61, 139 O.R. (3d) 166, at para. 101, leave to appeal refused, [2018] S.C.C.A. 98. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
In this administrative CMT context, the court considers the possibility of a 'circumstantial' alternative inference (or suspect):[67] Mr. Kitmitto says that because the case against him is based solely on circumstantial evidence, the Tribunal was required to consider reasonable competing inferences that were available on the evidence. He relies on R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 37-38, in which the Supreme Court of Canada stated:37. When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt ... . [T]he 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.
38. Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is 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. [Citations omitted.] . R. v. Beauvais
In R. v. Beauvais (Ont CA, 2023) the Court of Appeal considered a circumstantial [Villaroman] evidence issue in a child pornography conviction appeal, here the burden on the Crown to negate plausible alternative non-guilt factual theories:[23] Constable Fasullo testified that the scan he conducted on the laptop exposed a virus which could “[execute] commands from an attacker”. Although Constable Fasullo did not testify that the virus in fact allowed a third-party attacker to download child pornography onto the laptop, his evidence was nevertheless sufficient to move this inference from the realm of pure speculation to that of a reasonable possibility. As the Supreme Court cautioned in Villaroman, at para. 35, “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts”. It was therefore not incumbent on the appellant to adduce further evidence to positively support this inference. The burden instead rested with the Crown to negate it.
[24] Had Constable Fasullo simply testified to the presence of a virus, and nothing more, the Crown might not have had any further work to do, but his description of the virus in this case as permitting the attacker to execute commands provided an air of reality to the suggestion that someone may have used the appellant’s computer remotely to access and download child pornography. This inference was not speculative but grounded in the expert’s description of the possibility that this virus could provide an external user with the power to execute commands on the computer. This evidence placed a tactical obligation on the Crown to present some evidence to negate the possibility that a third-party attacker was responsible for downloading the child pornography, failing which this evidence could potentially create a reasonable doubt. . R. v. MacAdam
In R. v. MacAdam (Ont CA, 2023) the Court of Appeal stated the Villaroman principle of circumstantial evidence:[8] The expert’s testimony laid the foundation for a reasonable possibility inconsistent with guilt. Instead of explaining why the Crown had proven possession for the purpose of trafficking beyond a reasonable doubt when its own expert had conceded another reasonable possibility, the trial judge required the defence to establish the hypothetical scenario with proven facts. However, in circumstantial cases, inferences inconsistent with guilt do not have to be based on proven facts but must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: see R. v. Villaroman, 2016 SCC 33 at para. 37. While the Crown did not have to negative every possible conjecture, it had to negative the opinion put in play by the expert.
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