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Evidence - Inferences. R. v. Geele
In R. v. Geele (Ont CA, 2024) the Ontario Court of Appeal dismissed a sexual assault appeal, here where the appellant argued before the jury that the absence of existing Crown forensic evidence was material:[12] A reasonable doubt can arise from the absence of evidence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 39; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at paras. 68-70. It cannot, however, “arise from speculation about what uncalled evidence might have been, or why the evidence was not called”: R. v. MacKenzie, 2020 ONCA 646, 395 C.C.C. (3d) 421, at para. 57. Here, while the trial judge’s initial instruction was largely correct – in that the jury could not speculate about why certain evidence was not called, or assume that it would have contradicted the complainant’s evidence – we accept that the jury could have understood his direction “not [to] speculate on what [evidence they] do not have” to mean a doubt could not arise from the absence of evidence. However, the post-charge corrective instruction that the jury could “consider that [they] don’t have that evidence”, made it clear that it was open to them to find that in the absence of the SAEK results the Crown had failed to establish guilt beyond a reasonable doubt. It is important to note that, earlier in his instructions, the trial judge told the jury that “[i]f at the end, based on all of the evidence or lack of evidence, you are not sure that [the appellant] committed the offence charged, you should find him not guilty of it.” [Emphasis added.]
[13] On a functional reading, the jury charge as a whole made it clear what the standard of proof is, and that the absence of evidence could give rise to a reasonable doubt. There is no basis for appellate intervention. . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the history and meaning of the limited Crown appeal under CCC 676(1)(a).
Here the court considers the law and case treatment of 'common sense inference':(3) Did the Trial Judge Err in Law in Failing to Consider the Common Sense Inference?
[65] The Crown next argues that the trial judge erred in law by failing to consider the common sense inference, namely that sane and sober individuals intend the natural and probable consequences of their actions, in light of all the relevant evidence (Walle, at paras. 58‑63). The common sense inference the Crown proposes is that choking someone forcefully to the point of unconsciousness amounts to an intentional infliction of bodily harm where the natural consequence is death.
[66] We are of the view that this argument is ill founded. While it was certainly open to the trial judge to consider the common sense inference, she was not bound to draw it.
[67] While the common sense inference can serve as a helpful “marker against which to measure the rather amorphous concept of intent”, it does not replace a trial judge’s evaluation of subjective intent (Walle, at para. 63). It is a permissive inference, not a presumptive one (R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 20; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 104; Walle, at para. 63). Thus, it cannot be an error for a trial judge to not seize it. A trier of fact must carefully consider the evidence that points away from the common sense inference before acting on it, as this Court aptly put in Walle:If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the [trier of fact] in a state of reasonable doubt about the accused’s intent, then the [trier of fact] may properly resort to the common sense inference in deciding whether intent has been proved. [para. 67] [68] In this case, the trial judge chose not to infer Mr. Hodgson’s mental state and based on the evidence she did accept, she had a reasonable doubt as to whether Mr. Hodgson intended to cause death or bodily harm that he knew was likely to result in death. The trial judge had the benefit of Mr. Hodgson’s testimony that he did not think the chokehold was dangerous and that he did not intend to kill or harm Mr. Winsor (trial reasons, at para. 88). Having accepted his testimony, this put an end to her mens rea analysis, and there was no need for her to consider the common sense inference. The trial judge is presumed to know the law and need not state reasons for every inference that was or was not drawn (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74). The absence of an express refusal on the trial judge’s part to engage with the common sense inference cannot constitute an error of law in circumstances where she clearly articulated her findings in relation to the mens rea for murder.
[69] In sum, we see no error, and certainly no error of law, in the trial judge’s assessment of the evidence on the mens rea for manslaughter or murder. . R. v. S.W.
In R. v. S.W. (Ont CA, 2024) the Court of Appeal considered evidentiary inferences that a trial judge may make:[29] A trial judge is entitled to draw inferences from the evidence based on common sense and human experience. However, it is an error of law for a trial judge to make conclusions that are not based in evidence or proper judicial notice. Judges must not make findings of fact that are grounded in speculation or stereotyping: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 58; R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19. . R. v. A.J.
In R. v. A.J. (Ont CA, 2023) the Court of Appeal considers 'inference reasoning' as a form of evidence:[10] Triers of fact are entitled to draw common sense inferences from the evidence, and to interpret the evidence by relying on their own experience. This form of reasoning can be used to assess the plausibility of human behaviour without offending the rules against stereotypical inferences and ungrounded common-sense assumptions. Prohibited reasoning is limited to “assumptions that are not grounded in the evidence or appropriately supported by judicial notice” and “inferences that are based on stereotype or ‘prejudicial generalizations’”: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 59, 61, 65. . R. v. Firlotte
In R. v. Firlotte (Ont CA, 2023) the Court of Appeal considered an evidentiary 'common sense inference' argument, here in deciding the mens rea for murder:Issue Three: The Trial Judge Did Not Err in His Application of the “Common Sense Inference”
[51] In R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 C.C.C. (3d) 500, Gillese J.A. explained how the common sense inference can be relevant in determining an accused’s state of mind, and in particular the intent for murder. She stated at para. 18:The Crown is often required to prove a culpable state of mind as an element of an offence. The culpable state of mind may be intention, foresight or something else, such as knowledge. Section 229(c) requires proof of foresight, that is, that an accused foresaw that the acts done for the unlawful object were likely to cause death. The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normal or reasonable person would have intended or foreseen is unhelpful or irrelevant. A person’s state of mind may be determined by what a person says and does. It may be deduced also by considering what the natural consequences of someone’s actions are and whether the person, by acting in the manner for which there would be natural consequences, foresaw that those natural consequences would occur. While there is no legal presumption that a person foresees or intends the natural consequences of his or her acts, it is a common sense proposition. [52] The common sense inference assumes that the act or acts in question have natural and probable consequences. It is helpful only if, as a matter of common human experience, there is a close causal connection between the act and the consequence which is material to the criminal charge. The more likely, as a matter of common human experience, the consequence is to flow from the action, the stronger is the inference that the person intended that consequence: R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at paras. 88-89. It is for the trial judge to determine whether the facts are such that a common sense inference could arise. Its application is not automatic or determinative; the common sense inference, when properly used, is a “helpful tool to be used in assessing the evidence going to the accused’s state of mind”: Boone, at para. 89.
[53] The appellant does not assert that the common sense inference had no role to play in this case. Rather, the appellant contends that there was an “over-reliance” by the trial judge on the common sense inference to make it determinative of guilt without linking the actions of the appellant to the victim’s death. The appellant asserts that, rather than using the common sense inference as a tool, the trial judge used it as a “short cut”. The trial judge did not explain how, in the context of additional factors that led to the victim’s death, such as hypothermia, the appellant’s actions had the natural consequence of death, rather than a mere risk of death.
[54] The appellant contends that this case is similar to Boone, where this court allowed an appeal of an attempted murder conviction in part based on the trial judge’s instruction to the jury on the common sense inference. The inference was not applicable because death was not the natural and probable consequence of the appellant’s actions. The appellant also refers to R. v. Hadfield, 2020 ONSC 5992, where, although the assault by the accused was a cause of the victim’s death, the trial judge declined to convict where there was a single kick and the victim hit his head on a curb. It was not sufficient to foresee the risk of death; there had to be a likelihood of death from the accused’s forceful blow. The appellant contends that, as in these cases, this court should find that there was a gap in the inferential chain because there were other factors that led to Mr. Bailey’s death.
[55] I would not give effect to this argument. The question on appeal is whether, having regard to the applicable evidence and common human experience, it was “reasonably open” to the trial judge, as the finder of fact, to draw upon the common sense inference: R. v. J.A., 2022 ONCA 445, at para. 14. The common sense inference had a role to play in this case as long as the likely death of the victim, by whatever mechanism, could reasonably be described as the natural and probable result of the appellant’s actions. The focus is not on whether specific actions of the appellant considered in isolation (such as the beatings) had natural and probable consequences, but on whether the collective body of evidence respecting the appellant’s conduct was such that the victim’s death was the natural, probable, or predictable consequence of such conduct.
[56] In this case it was open to the judge to conclude that the cumulative conduct of the appellant was such that death or bodily harm likely to cause death was the natural and probable consequence. The appellant and his accomplice embarked on a dangerous course of conduct. There was expert evidence about the injuries that spoke to the severity of the attack. There were significant and debilitating blows and sharp force injuries to the victim’s body and hands. His head was struck multiple times, injuring his brain and affecting his level of consciousness. The defence pathologist testified that the victim needed medical intervention. He was left in a field in the dark with his eyes swollen shut, without any reasonable prospect of rescue and without a car or a cell phone, wearing inadequate clothing at below freezing temperatures.
[57] The expert evidence in this case did not undermine, but supported, the use of the common sense inference. By contrast, in Boone, where the appellant had engaged in unprotected sex with various victims, intending to infect them with the HIV virus, based on the expert evidence, it could not be said that a close causal connection existed between the sexual activity engaged in by the appellant and the infection of his partners or between the infection of his partners and their ultimate death from AIDS. Neither infection as a result of the sexual activity, nor eventual death from infection could be accurately described as “natural and probable consequences” of the appellant’s actions. Nor is this case at all like Hadfield, where there was no mention of the common sense inference, and in any event, the trial judge concluded, on the evidence before him, that there was nothing to suggest that accused would have foreseen that the single blow to the victim would result in his death.
[58] In R. v. Robson, 2008 ONCA 153, an argument that the trial judge had erred in instructing the jury on the common sense inference was rejected by this court. The appellant had sexually assaulted the victim, in the course of which he had beaten her about the head. The pathologist listed aspiration of vomit as the sole cause of death. His evidence was that the head injuries caused her to vomit, although he acknowledged that revulsion and anxiety caused by the attack may also have contributed to the victim’s vomiting. This court stated that it did not accept that, because the appellant might not have been able to foresee specifically how the victim would die, her death could not be a likely consequence of his acts. It was an inference the jury could draw and accordingly the common sense inference was properly placed before them.
[59] Similarly, in the present case, the fact that the appellant might not have been able to foresee how Mr. Bailey would die – that is whether other factors might have contributed to his death – did not preclude the availability of the common sense inference, provided the trial judge was satisfied that death would be a likely consequence of the appellant’s acts. There was a close causal connection between the appellant’s conduct and the victim’s death. The appellant’s acts included not only a serious and debilitating assault but the abandonment of an injured victim who required medical attention in sub-zero temperatures, without the prospect of aid. There is nothing in the evidence in this case that would preclude the operation of the common sense inference.
[60] I would not, therefore, give effect to the “common sense inference” ground of appeal. . Registrar, Alcohol and Gaming Commission of Ontario v. Giesz-Ramsay
In Registrar, Alcohol and Gaming Commission of Ontario v. Giesz-Ramsay (Div Court, 2023) the Divisional Court considers the Alcohol and Gaming Commission of Ontario's (AGCO) JR application of a LAT ruling that set aside a "Notice of Proposal to Refuse Licence", here for a 'cannabis retail manager' [under s.5(6) of the Cannabis Licence Act, 2018 (CLA)].
In these quotes the court considers whether the LAT erred in law by making inappropriate evidentiary inferences:[12] Pursuant to s. 11(3) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, an appeal of a decision of the LAT may be made on a question of law only. ...
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Did the LAT Make Irrational Inferences Amounting to An Error of Law?
[17] The AGCO, relying on this court’s decision in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at para. 28, aff’d 2022 ONCA 446, leave to appeal granted, [2022] S.C.C.A. No. 310, submits that the LAT erred in law by making a finding of fact on a material point where the factual finding was based solely on an irrational inference. Specifically, the AGCO submits that the LAT erred in law by making the irrational inference that the Respondent’s past pattern of publicity and transparency in her illegal activities indicates a high probability that she will comply with her legal obligations in the future.
[18] The LAT found that there was no dispute that the Respondent “knowingly and deliberately engaged in a course of conduct that she was aware to be illegal.” The AGCO submits that given this fact, it was irrational for the LAT to infer that the transparency with which the Respondent carried out her illegal activities was indicative that she would act in compliance with cannabis laws in the future.
[19] Again, the AGCO’s submission fails to take into account the large volume of evidence that was before the LAT and that it relied on in its analysis, including the Respondent’s testimony. The evidence in support of the inference that the Respondent would comply with cannabis laws included the following: the Respondent’s guilty plea and compliance with the terms of her release and sentence; her involvement in legal endeavours in support of cannabis legalization; her repeated expressions of remorse; her recognition of the risks of unregulated sources of cannabis; and her commitment to complying with applicable laws. The LAT found that transparency was the defining feature of the Respondent’s past conduct, not only with respect to her past illegal activities but throughout the licensing application process. In my view, the inference made by the LAT was not irrational, but was a reasonable one based on the evidence that was before it.
[20] For the foregoing reasons, I find that the AGCO has failed to demonstrate any errors of law on the part of the LAT. . R. v. Millard
In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In these quotes the court considers the evidentiary effect of factual inferences drawn from circumstantial evidence:[36] The trial judge provided jurors with an uncontroversial jury instruction on reasonable doubt and the burden of proof. He subsequently instructed them “about circumstantial evidence” and provided an uncontroversial instruction about inferring guilt from circumstantial evidence. He then provided jurors with what he called a “related instruction” about inferences that give rise to reasonable doubt. He twice told jurors that “a finding that the accused is not guilty, can be based on any reasonably possible, non-speculative and logical inference that arises from the evidence or lack of evidence”. After he repeated an earlier caution that he had given that “inference drawing is not to be based on speculation or on absence of any evidentiary basis”, he continued by saying, “[i]t has to be [a] non-speculative, reasonably possible, logical inference that the accused is not guilty based on the evidence or the lack of evidence.”
[37] Both appellants argue that this “related instruction”, linking inference drawing to reasonable doubt, was wrong because “a not guilty verdict is [not] an inference” and need not rest on a line of reasoning, or evidence. They argue that to require reasonable doubt to be based on a non-speculative, reasonable inference would reverse the burden of proof, and is inconsistent with jurisprudence from this court including R. v. Brown, 2018 ONCA 1064, at para. 15; R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 32-36; and R. v. Mann, 2021 ONCA 103, 481 C.R.R. (2d) 143, at paras. 12-20.
[38] I would not give effect to this ground of appeal. It is not an error to direct jurors that a reasonable doubt can be based on a factual inference that is inconsistent with guilt. The rule in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, that an inference of guilt may be drawn from circumstantial evidence, only if it is “the only reasonable inference that such evidence permits” recognizes that a reasonable doubt will arise where there are factual inferences inconsistent with guilt that arise from the evidence. It was therefore not erroneous for the trial judge to explain how innocent inferences may be drawn. . Kilback v. Canada
In Kilback v. Canada (Fed CA, 2023) the Federal Court of Appeal considers factual inferences, including adverse inferences:[61] A failure to file evidence on the points in issue without a reasonable explanation may lead to an adverse inference: Apotex Inc. v. Merck & Co. Inc., 2004 FC 314 at para 28, aff’d 2004 FCA 298; Riva Stahl Gmbh v. Bergen Sea (The), [1999] F.C.J. No. 762 (QL), 243 N.R. 183 (CA) at para. 11. The judge may make inferences of fact based on undisputed facts before the Court, provided they are strongly supported by the facts: Lameman at para. 11, citing Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, 178 D.L.R. (4th) 1 at para. 30. . Eley v. Ontario Securities Commission
In Eley v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considers the evidential drawing of inferences:[30] Eley’s argument on this point mischaracterizes the basis on which inferences may be drawn. The trier of fact is entitled to draw an inference from all the evidence that the trier of fact accepts – be that evidence direct or circumstantial. On review, the question is whether there was a sufficient basis in the evidence to draw the inference in question. The test, on review, is whether an inference is “reasonably and logically drawn from a fact or group of facts established by the evidence” (Finkelstein v. Ontario 2016 ONSC 7508, paras. 17-20 (Div. Ct.); rev’d in part on other grounds: 2018 ONCA 61).
[31] Drawing inferences is an aspect of fact-finding. Considerable deference is accorded to findings of fact, including inferences drawn from the evidence: Housen v. Nikolaisen, 2002 SCC 33, paras. 23-25. Where an inference is “reasonably and logically drawn” they will not be “overturned by a reviewing or appellate court just because there are other inferences that could have been drawn, even if those other inferences might be said to be more persuasive” (Finkelstein v. Ontario 2016 ONSC 7508, paras. 17-24 (Div. Ct.); rev’d in part on other grounds: 2018 ONCA 61). . R. v. Spicer
In R. v. Spicer (Ont CA, 2023) the Court of Appeal addresses the entitlement of a trial judge to draw inferences:[10] A trial judge is entitled to draw reasonable inferences from the facts that are presented. It was open to the trial judge to draw the inference that he did from the facts that were before him. A different factual scenario might not allow for such an inference. But it was the trial judge’s job to decide on the available inferences, and to do so without being labelled as having engaged in myth-based reasoning. While we accept that the trial judge’s reasons were not as clear as they might have been on this point, ambiguity is not sufficient to establish error. As was observed in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 79:Where ambiguities in a trial judge's reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. [Citations omitted.][2] . R. v. Stennett
In R. v. Stennett (Ont CA, 2021) the Court of Appeal (Watt JA) considered evidentiary inferences:[53] Second, drawing inferences.
[54] A trier of fact may draw inferences from the evidence adduced at trial. However, the inferences must be ones that can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is not a permissible inference but rather impermissible conjecture and speculation: Morrissey, at p. 209.
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