R. v. Villaroman

R. v. Villaroman
Collection
Supreme Court Judgments
Date
2016-07-29
Neutral citation
2016 SCC 33
Report
[2016] 1 SCR 1000
Case number
36435
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 36435
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000
Appeal heard: March 21, 2016
Judgment rendered: July 29, 2016
Docket: 36435
Between:
Her Majesty The Queen
Appellant
and
Oswald Oliver Villaroman
Respondent
- and -
Attorney General of Ontario,
Attorney General of British Columbia and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 73)
Cromwell J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)
R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000
Her Majesty The Queen Appellant
v.
Oswald Oliver Villaroman Respondent
and
Attorney General of Ontario,
Attorney General of British Columbia and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Villaroman
2016 SCC 33
File No.: 36435.
2016: March 21; 2016: July 29.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for alberta
Criminal law — Evidence — Circumstantial evidence — Inferences — Reasonable verdict — Accused found guilty on charge of possession of child pornography — Whether trial judge erred in his analysis of circumstantial evidence by requiring that inference supporting conclusion other than guilt be based on evidence rather than upon lack of evidence — Whether guilty verdict was unreasonable.
V was having problems with his laptop computer, so he left it with a repair shop. The repair technician found child pornography on the laptop. He called the police, whose search of the laptop confirmed the presence of child pornography. V was charged with a number of pornography related offences, including possession of child pornography. The trial judge found that the mainly circumstantial evidence against V proved guilt on the charge of possession of child pornography beyond a reasonable doubt. The trial judge also disagreed with V that the police search of the laptop violated s. 8 of the Canadian Charter of Rights and Freedoms . The Court of Appeal concluded that the judge had misstated the current law respecting circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable. The Court of Appeal therefore set aside the conviction and entered an acquittal. The Court of Appeal declined to consider the Charter issues because its acquittal of V made those issues academic.
Held: The appeal should be allowed, the acquittal set aside and the case remanded to the Court of Appeal for hearing and disposition of the Charter ss. 8 and 24(2) issues.
No particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.
An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. An instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes. The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty. An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. 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. While this Court has used the words “rational” and “reasonable” interchangeably to describe the potential inferences, there is an advantage of using the word “reasonable” to avoid the risk of confusion between the reasonable doubt standard and inferences that may arise from circumstantial evidence. However, using the traditional term “rational” is not an error as the necessary message may be imparted in different ways.
A view that inferences of innocence must be based on proven facts is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. 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.
The Court of Appeal found that the trial judge erred because he failed to consider reasonable inferences inconsistent with guilt that could have arisen from a lack of evidence. While there are certainly some problematic statements in the trial judge’s reasons, when the reasons are read as a whole and these passages are read in their proper context, he made no reversible error. The judge correctly stated the law in relation to circumstantial evidence. Contrary to V, the judge did not lose sight of proper process of inference-drawing, the overall burden of proof, or the difference between the standard applied to a committal for trial and the reasonable doubt standard applied to a finding of guilt.
The judge’s conclusions that a user of V’s computer knowingly downloaded pornography and that V was knowingly in possession of the child pornography that had been saved on his computer were reasonable. While there were gaps in the Crown evidence about V’s possession and control of the computer, the Court of Appeal’s analysis of these gaps in effect retried the case. It was for the trial judge to decide whether the evidence of V’s possession and control, when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt. While not every trier of fact would inevitably have reached the same conclusion as did the trial judge, that conclusion was a reasonable one.
Cases Cited
Considered: Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136; approved: R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138; referred to: R. v. Daniels, 2004 NLCA 73, 242 Nfld. & P.E.I.R. 290; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Morrissey (1995), 22 O.R. (3d) 514; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; McLean v. The King, [1933] S.C.R. 688; R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162; R. v. Fleet (1997), 120 C.C.C. (3d) 457; R. v. Tombran (2000), 142 C.C.C. (3d) 380; John v. The Queen, [1971] S.C.R. 781; Mezzo v. The Queen, [1986] 1 S.C.R. 802; Schuldt v. The Queen, [1985] 2 S.C.R. 592; Boucher v. The Queen, [1955] S.C.R. 16; Fraser v. The King, [1936] S.C.R. 1; Lizotte v. The King, [1951] S.C.R. 115; R. v. McIver, [1965] 2 O.R. 475, aff’d [1966] S.C.R. 254; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149; R. v. Comba, [1938] O.R. 200, aff’d [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11; R. v. Mitchell, [2008] QCA 394; R. v. Bagshaw, [1972] S.C.R. 2; Martin v. Osborne (1936), 55 C.L.R. 367; R. v. Paul, [1977] 1 S.C.R. 181; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Mars (2006), 205 C.C.C. (3d) 376; R. v. Liu (1989), 95 A.R. 201; R. v. S.L.R., 2003 ABCA 148; R. v. Cardinal (1990), 106 A.R. 91; R. v. Kaysaywaysemat (1992), 97 Sask. R. 66; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, s. 163.1(4) .
Authors Cited
Berger, Benjamin L. “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005), 84 Can. Bar Rev. 47.
Canadian Judicial Council. Model Jury Instructions, 10.2 Direct and Circumstantial Evidence (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/, last updated June 2012).
Canadian Oxford Dictionary, 2nd ed., by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 2004, “rational”, “reasonable”.
Dufraimont, Lisa. “R. v. Griffin and the Legacy of Hodge’s Case” (2009), 67 C.R. (6th) 74.
Gans, Arthur M. “Hodge’s Case Revisited” (1972-73), 15 C.L.Q. 127.
Scott, Eric. “Hodge’s Case: A Reconsideration” (1965-66), 8 C.L.Q. 17.
Wills, William. Wills’ Principles of Circumstantial Evidence, 7th ed. London: Butterworth & Co., 1937.
APPEAL from a judgment of the Alberta Court of Appeal (Côté and O’Ferrall JJ.A. and Macleod J. (ad hoc)), 2015 ABCA 104, 599 A.R. 294, 13 Alta. L.R. (6th) 369, 320 C.C.C. (3d) 50, 643 W.A.C. 294, [2015] A.J. No. 293 (QL), 2015 CarswellAlta 436 (WL Can.), setting aside the conviction for possession of child pornography entered by Yamauchi J., 2013 ABQB 279, 562 A.R. 105, 83 Alta. L.R. (5th) 297, [2013] A.J. No. 538 (QL), 2013 CarswellAlta 857 (WL Can.), and entering an acquittal. Appeal allowed.
Jolaine Antonio and Jason Wuttunee, for the appellant.
Ian D. McKay and Heather Ferg, for the respondent.
Matthew Asma, for the intervener the Attorney General of Ontario.
Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia.
Sharon E. Lavine and Naomi M. Lutes, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1] The respondent, Mr. Oswald Villaroman, was having problems with his laptop computer, so he left it with a repair shop. The repair technician found child pornography on the laptop. He called the police, whose search of the laptop confirmed the presence of child pornography. Mr. Villaroman was charged with a number of pornography-related offences, including possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 , the only charge relevant to this appeal.
[2] At trial, Yamauchi J. found that the mainly circumstantial evidence against the accused proved guilt on the charge of possession of child pornography beyond a reasonable doubt: 2013 ABQB 279, 562 A.R. 105. The Court of Appeal, however, concluded that the judge had misstated the current law respecting circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable: 2015 ABCA 104, 599 A.R. 294, at paras. 20 and 38. The Court of Appeal therefore set aside the conviction and entered an acquittal. The Crown appeals, submitting that the Court of Appeal erred by requiring the Crown in effect to disprove all innocent possibilities and, more specifically, by requiring the Crown to prove either that the accused had downloaded the pornography or that he had exclusive access to the computer where it was stored. The Crown maintains that the judge did not make any legal error in his treatment of the circumstantial evidence and that the verdict of guilt was reasonable. The respondent supports the decision and reasoning of the Court of Appeal and points to a number of what he says are clear legal errors in the trial judge’s analysis.
[3] I would allow the appeal. As I see it, the trial judge’s reasons, read as a whole, do not contain any legal errors and his finding of guilt was reasonable.
II. Issues
[4] The Court of Appeal found that the case law in relation to circumstantial evidence “may not be readily consistent” and “seems to have changed in very recent years”: paras. 8 and 20. This appeal is an opportunity to provide any needed clarification. For the purposes of my analysis, I have found it helpful to approach the case by answering two questions:
1. Did the Court of Appeal err in finding a legal error in the trial judge’s analysis in relation to the circumstantial evidence?
2. Was the guilty verdict unreasonable?
[5] Some issues related to whether the police search of the laptop violated s. 8 of the Canadian Charter of Rights and Freedoms were argued at trial and before the Court of Appeal. The trial judge found that the police search was lawful (2012 ABQB 630, 557 A.R. 1), while the Court of Appeal declined to consider the search issues because its acquittal of Mr. Villaroman made those issues academic: paras. 38-39. On appeal before this Court, the parties agreed that if we accept the Crown’s position with respect to the circumstantial evidence, the case should be remanded to the Court of Appeal to deal with those issues. I accept the parties’ position and would remand these issues back to the Court of Appeal.
III. Overview of the Facts and Decisions
A. Background
[6] Mr. Villaroman took his laptop computer to a MyMacDealer shop for repairs to the power button and battery. (While it was not conceded at trial that Mr. Villaroman was the person who delivered the computer, it is for the purposes of this appeal.) He provided his name, address, and telephone number to the repair shop. The technician, Alan Sopczak, examined the computer, which was not password-protected, and identified the necessary repairs. He then telephoned Mr. Villaroman, who authorized the work.
[7] After completing some repairs, Mr. Sopczak checked some files randomly to test whether the computer’s software was operating properly. While checking the music files, he discovered child pornography files in the music folder of the iTunes library folder. He thought the number of files ruled out a random occurrence and called the police, who seized the computer. Days later, when Mr. Villaroman came to the shop to get the laptop, Mr. Sopczak informed him that the police had seized it.
[8] Mr. LaFontaine, a forensic analyst, testified that there was only one user account associated with the computer, named “oswaldvillaroman”. The user account was set up on the computer on July 1, 2007 and there had been almost daily activity on it from that date until November 29, 2009, a couple of days before the computer was brought to the shop.
[9] Mr. LaFontaine’s evidence was that the computer’s hard drive contained 36 child pornography files: one picture and 35 videos. Two of the file names appeared to be in an Asian language, but all of the rest suggested or expressly described underage pornographic content. The files were downloaded using a peer-to-peer downloading software called “Limewire”. Eighteen of the videos were partial or incomplete downloads located in the Limewire “incomplete” folder. Seventeen were complete downloads that were found, along with the one picture, in the computer’s music folder. The user had viewed some videos from each folder using two different media-playing programs.
[10] Mr. Villaroman admitted that the computer was his and that the 36 files found on it constituted child pornography as defined in the Criminal Code . The main factual issue at trial in relation to the possession of child pornography charge was whether the evidence established that Mr. Villaroman had been in possession of the child pornography. As the trial judge noted, this required the Crown to prove that he knew the nature of the material, had the intention to possess it, and had the necessary control over it: para. 26, citing R. v. Daniels, 2004 NCLA 73, 242 Nfld. & P.E.I.R. 290.
B. Trial Findings
[11] The trial judge noted that the Crown’s case depended on the circumstantial evidence provided by the technician, Mr. Sopczak, and the forensic analyst, Mr. LaFontaine. Asking himself whether the inferences drawn from the evidence satisfied him beyond a reasonable doubt that Mr. Villaroman had committed the offence: para. 43, citing R. v. Lifchus, [1997] 3 S.C.R. 320, the trial judge concluded that they did. He found that Mr. Villaroman “knew the nature of the material, had the intention to possess it, and had the necessary control over it”: para. 68.
C. Court of Appeal Decision
[12] The Court of Appeal found that the trial judge had “misstated the current law” on weighing circumstantial evidence and that the verdict was unreasonable: para. 20. In the Court of Appeal’s opinion, there was not sufficient evidence to raise a case for the defence to answer: para. 38. The conviction was set aside and an acquittal entered.
IV. Analysis
A. First Question: Did the Court of Appeal Err in Finding a Legal Error in the Trial Judge’s Analysis in Relation to the Circumstantial Evidence?
(1) The Alleged Errors
[13] At the core of the errors identified by the Court of Appeal, and elaborated upon by the respondent, is that the trial judge erred in his treatment of circumstantial evidence, a subject that dates back at least to Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136. That case contains a jury instruction about how the jury should assess circumstantial evidence of identity. The jury was told that in order to convict, they must be satisfied not only that the circumstantial evidence was consistent with guilt but rationally inconsistent with any other conclusion than guilt. The nub of the issue in this case is whether the trial judge erred by requiring that “any other conclusion than guilt” be based on the evidence.
[14] The Court of Appeal, as I read its reasons, found that the trial judge erred by requiring that an inference or hypothesis supporting a conclusion other than guilt be based on evidence rather than upon a lack of evidence: para. 10. The respondent (as he is entitled to do in seeking to uphold the Court of Appeal’s order), relies on what he claims are additional errors made at trial: that the trial judge relied on inapplicable sources; erroneously analyzed the requirement of proof beyond reasonable doubt; and wrongly reversed the burden of proof. But at the core of all of these alleged errors is the point taken by the Court of Appeal: that the trial judge was wrong to exclude from consideration innocent explanations which had no foundation in the evidence.
[15] Before turning to a more detailed analysis, it is important to remember that a trial judge’s reasons for judgment should not be “read or analyzed as if they were an instruction to a jury”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 525. Rather, the reasons must be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; see also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11.
(2) Did the Trial Judge Err by Requiring Innocent Explanations to be Based on the Evidence?
[16] The Court of Appeal’s concern with the trial judgment arises from some ongoing difficulties caused by the old rule in Hodge’s Case. While that case was not mentioned by name, the principle that it enunciated cast a long shadow over the judgments at trial and on appeal. I will turn first to some of the troublesome aspects of the jurisprudence flowing from Hodge’s Case and then return to the errors of law the trial judge is alleged to have committed.
(a) The Current Status of the “Rule” in Hodge’s Case
[17] In Hodge’s Case, the evidence of identification was made up entirely of circumstantial evidence: p. 1137. Baron Alderson, the trial judge, instructed the jury that in order to convict, they must be satisfied “not only that those circumstances were consistent with [the accused] 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 [accused] was the guilty person”: p. 1137. This sort of jury instruction came to be required in circumstantial cases: see, e.g., McLean v. The King, [1933] S.C.R. 688.
[18] Over time, this requirement was relaxed: see, e.g., R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860. It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. As Charron J. writing for a majority of the Court put it in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33:
We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29. [Emphasis added.]
[19] There may be some tension between the first and the second sentence of this passage from Griffin: see, e.g., L. Dufraimont, “R. v. Griffin and the Legacy of Hodge’s Case” (2009), 67 C.R. (6th) 74. While the first sentence states that there is no required special instruction, the second sentence makes it an “essential component” of a jury instruction to ensure that the jury understands that they must be persuaded beyond reasonable doubt that the only rational inference is guilt. However, the cases cited with approval by Charron J. in this passage and our subsequent decision in R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 38, clear up any doubt about what was intended.
[20] In the above passage, Charron J. cited with approval R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. It is worth quoting that paragraph at length as in my view it makes Charron J.’s meaning clear:
It will be recalled that, in Cooper, Ritchie J. specifically rejected the necessity for any formula of words to be used in a case of circumstantial evidence of identity. In our view, he can hardly have intended to reject the mandatory recitation of one formula only to substitute another in its place. We read the object of both judgments in Cooper to be the eradication of any formulaic approach to such cases so long as the jury is clearly made aware of the necessity to find the guilt of the accused to be established beyond a reasonable doubt. This object may be achieved in more ways than one. Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidence to that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, for example, by:
(a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);
(b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judge did in Cooper in the final portion of his recharge); or
(c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts (per Ritchie J. in Cooper and Dubin J.A. in Elmosri).
[21] Charron J. also cited with approval R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), (a decision in which she participated as a member of the Ontario Court of Appeal), at para. 29. Once again, it is worth quoting that paragraph:
The modern approach to the problem of circumstantial evidence, enunciated clearly in Cooper, supra, and reiterated and reinforced by Fleet, supra, is to reject a formulaic approach and to deal with all the evidence in terms of the general principles of reasonable doubt. Trial judges are given a degree of latitude to formulate the appropriate instruction as befits the circumstances of the case. Trial judges are not required to adopt any specific language or wording, provided the charge conveys to the jury in a clear fashion the central point, namely, the necessity to find the guilt of the accused beyond a reasonable doubt. In particular, trial judges are not required to deliver to the jury a general, abstract lecture on the nature of circumstantial evidence or on the steps of logic to be followed in assessing circumstantial as distinct from direct evidence. An academic exercise along those lines may well confuse rather than assist the jury. Trial judges are entitled to conclude that the essential message of the need to establish guilt beyond a reasonable doubt can be better conveyed in other ways.
[22] These paragraphs, quoted with approval in Griffin, are consistent with what Charron J. conveyed in her reasons. This reading of the judgment is confirmed by our subsequent decision in Mayuran in which the Court reiterated the statement from Griffin that “[w]e have long departed from any legal requirement for a ‘special instruction’ on circumstantial evidence”: per Abella J., writing for a unanimous Court, at para. 38. There is therefore no particular form of mandatory instruction. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. I will touch briefly on both of these aspects.
(i) An Explanation of the Difference Between Direct and Circumstantial Evidence
[23] An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. One example of how this distinction may be conveyed to a jury is found in s. 10.2 of the Model Jury Instructions (online) prepared by the National Committee on Jury Instructions of the Canadian Judicial Council:
[1] As I explained at the beginning of the trial, you may rely on direct evidence and on circumstantial evidence in reaching your verdict. Let me remind you what these terms mean.
[2] Usually, witnesses tell us what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence.
[3] Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.
[24] While there is no particular required form of explanation, something along these lines will usually be helpful when one or more elements of the Crown’s case depends solely or mainly on circumstantial evidence.
(ii) The Relationship Between Circumstantial Evidence and Proof Beyond Reasonable Doubt
[25] The Court has generally described the rule in Hodge’s Case as an elaboration of the reasonable doubt standard: Mitchell; John v. The Queen, [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 843. If that is all that Hodge’s Case was concerned with, then any special instruction relating to circumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction.
[26] However, that is not all that Hodge’s Case was concerned with. 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. Baron Alderson referred to this risk in Hodge’s Case. He noted the jury may “look for — and often slightly . . . distort the facts” to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may “take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole”: W. Wills, Wills’ Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813.
[27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described — the danger of jumping to unwarranted conclusions in circumstantial cases — remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes: see B. L. Berger, “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005), 84 Can. Bar Rev. 47, at pp. 60-61.
[28] The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.
[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago — the risk that the jury will “fill in the blanks” or “jump to conclusions” — has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.
[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. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[31] I emphasize, however, that assistance to the jury about the risk of jumping to conclusions may be given in different ways and, as noted in Fleet, trial judges will provide this assistance in the manner they consider most appropriate in the circumstances: p. 549.
(iii) “Rational” v. “Reasonable” Inferences
[32] I have suggested the use of the word “reasonable” to describe the potential inferences rather than the word “rational” used by Baron Alderson in Hodge’s Case and in many other cases including Griffin. Which of these words should be used was one of the issues touched on by the Court of Appeal (at para. 9) and I should explain why I think that the word “reasonable” is preferable. The following comments also apply to the adjective “logique”, which has been frequently used in the French version of this Court’s jurisprudence on this issue.
[33] The words “rational” and “reasonable” are virtually synonyms: “rational” means “of or based on reasoning or reason”; “reasonable” means “in accordance with reason”: Canadian Oxford Dictionary (2nd ed. 2004). While some have argued that there is a significant difference, I do not find that position convincing: see, e.g., E. Scott, “Hodge’s Case: A Reconsideration” (1965-66), 8 C.L.Q. 17, at p. 25; A. M. Gans, “Hodge’s Case Revisited” (1972-73), 15 C.L.Q. 127, at p. 132. It seems that our jurisprudence has used the words “rational” and “reasonable” interchangeably with respect to inferences: see McLean; Fraser v. The King, [1936] S.C.R. 1, at p. 2; Boucher, at pp. 18, 22 and 29; John, at p. 792; Cooper, at p. 881; Lizotte v. The King, [1951] S.C.R. 115, at p. 132; Mitchell, at p. 478; Griffin, at para. 33. This, in addition to the dictionary definitions, suggests that there is no difference in substance between them.
[34] There is an advantage of using the word “reasonable”. It avoids the risk of confusion that might arise from using the word “reasonable” in relation to “reasonable doubt” but referring to “rational” inferences or explanations when speaking about circumstantial evidence: see John, per Laskin J., dissenting but not on this point, at p. 815. In saying this, I do not suggest that using the traditional term “rational” is an error: the Court has said repeatedly and recently that the necessary message may be imparted in different ways: see, e.g., Griffin, at para. 33.
(iv) Whether the Inference Must Be Based on “Proven Facts”
[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. 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”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “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.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
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