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Proper Evaluation of


There is no legal requirement for a special self-instruction on circumstantial evidence. To convict, a trial 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: R v Smith, 2016 ONCA 25 at para 80; R v Villaroman, 2016 SCC 33 at paras 55-56


It is the cumulative effect of all the evidence that is to be considered and may afford a basis for a finding of guilt – not each individual item which is merely a link in the chain of proof: R v Smith, 2016 ONCA 25 at paras 81-82

A trier of fact cannot consider individual items of circumstantial evidence against the standard of proof required of the evidence as a whole – proof beyond a reasonable doubt: R v McIntyre, 2016 ONCA 843 at para 13. The standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact: R v Qiang Wu, 2017 ONCA 620 at para 15

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings.  There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture: R v Wilson, 2016 ONCA 235 at para 30 [citation ommitted]

Sometimes the absence of evidence may raise a reasonable doubt about the guilt of an accused: R v Hassanzada, 2016 ONCA 284 at para 68


The absence of evidence may be of especial importance to the defence where no defence evidence is called. It follows that it is open to defence counsel to demonstrate inadequacies or failures in an investigation through cross-examination of the witnesses for the Crown and, in counsel’s closing address, to link those failures to the Crown’s obligation to prove its case beyond a reasonable doubt.


The importance of an absence of evidence to the adequacy of the Crown’s proof is a variable. Trial judges instruct juries that a reasonable doubt may arise from the evidence or an absence of evidence: Hassanzada at paras 69, 70, 71, 107


Circumstantial evidence does not have to totally exclude other conceivable inferences: Villaroman at para 55

When considering the reasonableness of the verdicts, and the inferences drawn by the trial judge, this court is entitled to consider that the appellant did not testify and did not adduce evidence to support any other reasonable inference consistent with his innocence: R v Qiang Wu, 2017 ONCA 620 at para 16


Improper Evlauation of


It is an error of law to draw inferences that do not flow logically and reasonably from established facts, because doing so draws the trial judge into the impermissible realms of conjecture and speculation. R v MacIsaac, 2015 ONCA 587 at para 46 


Where a trial judge has employed speculative reasoning, unless the Crown can demonstrate that the error caused no substantial wrong or miscarriage of justice, the convictions tainted by that error must be quashed: R v MacIsaac, 2015 ONCA 587 at para 47




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