Circumstantial Evidence

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 151-174

CHAPTER 5

CIRCUMSTANTIAL EVIDENCE

I. Introduction ..................................................... 

II. The Circumstantial Case ........................................... 

A. Preliminary Hearing ............................................ 

B. Trial ......................................................... 

C. Appeal ....................................................... 

. Unreasonable Verdict ....................................... 

. Misapprehension of Evidence ................................ 

III. Frequently Encountered Examples of Circumstantial Evidence .......... 

A. Post-Offence Conduct ......................................... 

. Overview .................................................. 

. General Principles of Admissibility ............................ 

. Admissibility to Infer Consciousness of Innocence .............. 

. Admissibility to Infer State of Mind ............................ 

. Limiting or Cautionary Jury Instructions ....................... 

B. Opportunity .................................................. 

C. Alternate Suspect.............................................. 

D. Motive ....................................................... 

IV. Summary ........................................................ 

151

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I. INTRODUCTION

Evidence is the foundation from which the trier of fact makes factual findings. It can

take different forms, such as testimon ial, real, or documentary. Irrespective of its form,

evidence will be either direct o r circumstantial.

Direct evidence that is accepted by the trier of fact as true becomes fact without

the need for any further as sessment. In other words, the acceptance of direct evidence

leads directly to the establishm ent of the fact that it seeks to prove. In contrast, circum-

stantial evidence lacks a direct link between the evidence and the fact that it seeks to

prove. If circumstantial evidence is accepted as true, th ere is a further reasoning process

required in order to establish fac ts. The trier of fact must assess the circumstantial evi-

dence to determine whether it supports the invited inference. Justice Watt defines an

inference as follows:

An inference is a deduction of f act that may logically and reaso nably be drawn from another

fact or group of fact s found or otherwise establis hed in the proceedings. There can b e no

inference without obje ctive facts from which to infer the fact s that a party seeks to estab-

lish. If there are no positive p roven facts from which an inference may be dr awn, there can

be no inference, only imp ermissible speculation and con jecture.1

Crown and defence counsel often dispute what law ful inferences may or may not be

drawn from circumstantial evidence in a give n case. Circumstantial evidence that leads

to only one reasonable conclusion can b e relied on by the trier of fact to conclude that

the Crown has proven the guilt of the accused person beyond a reasonable doubt.

However, caution is essential to avoid too readily drawing such inferences of guilt. In

Villaroman,2 the Supreme Court of Canada suggested that trial judges caution juries

about too easily jumping to conclusions wh en assessing circumstantial evidence:

It may be helpful to illust rate the concern about jumping to conclusions w ith an example. If

we look out the window an d see that the road is wet, we may jump to the conclusion th at

it has been raining . But we may then notice that the sidewalks are dr y or that there is a loud

noise coming from the di stance that could be street-cleaning equipment , and re-evaluate

our premature conclusion . The observation that the ro ad is wet, on its own, does not exclud e

other reasonable exp lanations than that it has been r aining. The inferences that may be d rawn

from this observ ation must be considered in light of all of the ev idence and the absence of

evidence, assess ed logically, and in light of human exper ience and common sense.3

The trier of fact should consi der whether there are other reasonable possibilitie s that

might explain the circumstantial evidence that are inconsistent with guilt. The Crown

must negate other reasonable poss ibilities that the defence may argue apply. However,

the Crown need not “negative every possible conjecture, no matter how irrational or

fanciful, which might be consistent w ith the innocence of the accused.”4

When presenting their respective theories of the case, Crown and defence counsel

must govern themselves by these principles. Crown counsel may firmly present the

1 Hon Justice Davi d Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuter s, 2020) at 51

(emphasis in original).

2 Rv Villaroman, 2016 SCC 33.

3 Ibid at para 30.

4 Rv Bagshaw, [1972] SCR 2 at 8; ibid at para 37.

152MODERN CRIMINAL EVIDENCE

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