Establishing Guilt Solely on Circumstantial Evidence
Facts in issue cannot always be proved by direct
evidence alone.
“Usually, witnesses testify as to 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.
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.”
10.2 of the Model Jury Instructions prepared by the
National Committee on Jury Instructions of the Canadian Judicial Council
It has become standard in Canada for the trial judge,
in the course of the instructions to the jury, to explain to the jury the
difference between direct and circumstantial evidence. This instruction is
usually accompanied by a simple everyday example (such as the one set out in the
Model Jury Instruction above). In addition, the judge will usually explain that
circumstantial evidence can present a further problem not necessarily present
in direct evidence, namely, that proof of the fact in issue depends on the
correctness of the inference to be drawn and not simply on the reliability and
credibility of the witnesses.
In the early part of this century, it was considered
necessary for the trial judge to give the jury a special instruction on the
application of the burden of proof in cases of circumstantial evidence. This
special instruction was known as the rule in Hodge's Case.
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. 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.
R. v. Villaroman, 2016 SCC 33, at para 18, 22
Where the Crown’s case against the accused is based
entirely on circumstantial evidence, the test is the one stated by Cromwell J.
in R. v. Villaroman,
2016 SCC 33, at paras. 55 and 56:
Where
the Crown’s case depends on circumstantial evidence, the question becomes
whether the trier of fact, acting judicially, could reasonably be satisfied that
the accused’s guilt was the only reasonable conclusion available on the
totality of the evidence [Cases and citations omitted].
The
governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that “[c]ircumstantial
evidence does not have to totally exclude other conceivable inferences” and
that a verdict is not unreasonable simply because “the alternatives do not
raise a doubt” in the jury’s mind. Most importantly, “[i]t is still
fundamentally for the trier of fact to decide if any proposed alternative way
of looking at the case is reasonable enough to raise a doubt.”
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