< Canadian Criminal Evidence

General Principles

Circumstantial evidence is evidence that is put forward to establish a fact that can be used to suggest an inference that other facts exist that would resolve a matter at issue.

In a case based on circumstantial evidence, it is often said that the rule in hodge’s applies.[1] The rule says that one can only convict on circumstantial evidence if the evidence is consistent with guilt and inconsistent with any other rational conclusion. [2] Other rational conclusions must be based on inferences from facts and not merely speculative. Underlying the rule, is the principle of reasonable doubt.

Circumstantial evidence is based on reasoning and inference-drawing through probability.[3] 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.[4]

Circumstantial evidence may be used to support the inference of innocence as well as long as the probative value outweighs prejudicial effect and it is not given undue weight.[5]

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[6]
  • disposition for violence by victim

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.[7]

Proof by circumstantial evidence requires consideration of the evidence as a whole and not in part.[8]

A conclusion cannot be found without evidence, which is to say that it cannot be speculation.[9]

A judge does not need to give special instructions for circumstantial evidence.[10]

Evidence of prior violence by the victim, including threats, can be relevant circumstantial evidence to establish reasonableness of an apprehension of harm and could not otherwise protect themselves from harm.[11]

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.[12]

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.[13]

  1. ↑ Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136 per Baron Alderson regarding a case made entirely of circumstantial evidence, the court must be satisfied "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person"
    also considered in R. v. Linn 1994 CanLII 4643 (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305 at para. 13-15 and R. v. Munro, 2001 SKQB 138 (CanLII) at 13-14
  2. ↑ Mezzo v. The Queen, 1986 CanLII 16, [1986] 1 SCR 802 at para. 12
  3. ↑ R v Arp 1998 CanLII 769, [1998] 3 SCR 339 at p. 375
  4. ↑ F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41, at paras. 33-40, 47-8
    R. v. Yousif, 2011 ABCA 12 (CanLII), at para. 5
  5. ↑ R. v. S.C.B. (1997), 104 O.A.C. 81 (CA) at para. 33 to 36
  6. ↑ R v Pilon (2009) 243 CCC (3d) 109 (ONCA)
  7. ↑ Griffin, 2009 SCC 28 at para 33
  8. ↑ R v Stewart, [1977] 2 SCR 748
    R v Turlon, (1989) 49 C.C.C. (3d) 186 (Ont. C.A.)
  9. ↑ R v Torrie [1967] 3 CCC 303 (ONCA)
  10. ↑ R v Griffin, 2008 SCC 28 at para 33
  11. ↑ R v Petel [1994] 1 SCR 3
  12. ↑ R v Froese (1988) 44 CCC (3d) 1 (MBCA)
  13. ↑ R v Mars (2006), 205 CCC (3d) 376

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 -- statement of deceased suggests motive for murder
  2. ↑ R v Lewis [1979] 2 SCR 821
  3. ↑ R v Ilina 2003 MBCA 20
  4. ↑ R v Cloutier, [1940] SCR 131
    Bari c. R., 2006 NBCA 119
  5. ↑ R. v. Portillo, 2003 CanLII 5709 (ON CA) - accused's possession of victim's property establish motive of theft for murder charge
  6. ↑ R. v. Cooper, 2004 BCCA 540
  7. ↑ R v Chapman 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont CA) at para. 27
    R v Cudjoe, 2009 ONCA 543 (CanLII), 2009 ONCA 543 at para. 64
    R v Van Osselaer 2002 BCCA 464 (CanLII), (2002), 167 CCC (3d) 225 (BC CA) 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) at paras. 97 and 102, 49 OR (3d) 321

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
  2. ↑ R. v. Woollam, 2012 ONSC 2188 (CanLII) at para. 48
    see Murphy and Butt v. The Queen 1976 CanLII 198 (SCC), [1977) 2 S.C.R. 603 at 617
    R. v. Boss, 1988 CanLII 190 (ON CA), (1988), 46 C.C.C. (3d) 523 (Ont. C.A.)
    Varcoe, 2007 ONCA 194 at para. 33
    R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9
    R. v. Clark, [1995] O.J. No. 4036 (C.A.) 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 the 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)
    R. v. Kinkead, 2003 CanLII 52177 (ON CA)
  2. ↑ R v Davison (1974) 20 C.C.C. (2d) 422 (ONCA)

Opportunity

Where the accused is the last person seen with the victim is circumstantial evidence of opportunity.[1] However, opportunity alone cannot be sufficient to make the case.

Evidence of the accused's frequented the area near where the victim frequented and where victim's body was found.

  1. ↑ R v Stevens (1984), 11 CCC (3d) 318

Exclusive Opportunity

Evidence that shows 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 identity of the culprit. The issue is whether the opportunity is truly "exclusive" and not simply a likely amongst several potential persons. This will often address factors such as who had access to the location of the offence as well as 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.[1] However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.[2]

  1. ↑ R. v. Ferianz (1962), 37 C.R. 37 (Ont. C.A.)(“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....”)
  2. ↑ R. v. Yebes, 1987 CanLII 17, [1987] 2 SCR 168 ("where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice."); See Johnson 2004 NSCA 91

Form of Evidence

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]

  1. ↑ e.g., R. v. Goulart-Nelson, [2004] O.J. No. 4010 (C.A.) at para. 14
    R. v. Morales 2006 CanLII 19930 (ON CA), (2006), 81 O.R. (3d) 161 (C.A.), at paras. 12, 14
  2. ↑ R. v. De Rojas, 2012 ONSC 3227 (CanLII) at para. 88

See Also

Case Digests

  • R. v. Frank, 2011 BCSC 1716 -- circumstantial case -- single fingerprint on duct tape used to bind victims -- guilty
  • R. v. Grant, 2006 ABPC 306
  • R. v. S.W.M., 2005 BCSC 1601 -- conviction -- father was last person with child before discovery of injuries, coupled with evidence of past bad acts
  • Tsigaridas [1994] O.J. No 1999 (Ont C.A.) -- acquittal -- evidence showing that keys to restaurant were shared with employees negates exclusive opportunity of owner to burn down business
  • R v Keller (1970) 1 CCC (2d) 203 -- convicted -- fingerprint on matchbook found at scene sufficient to connect accused with break and enter.
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