Published On: Jul 30,2016
Reasonable or Rational Inferences from Circumstantial Evidence in Criminal Trials: Regina.v.Villaroman, 2016 SCC 33. (July 29, 2016) by J.S. Patel, Barrister, 403-585-1960
The Supreme Court of Canda (the “Court”) in R. v. Villaroman, 2016 SCC 33 (“Villaroman”) recently dealt with a number of issues that have an impact on field of
criminal defence law, such as circumstantial evidence and the inferences that may be drawn from them. The issue before the the Court was 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. The effect of the Villarman decision will likely have practical implications concerning the strategic choices criminal lawyers while in sexual offence cases in criminal jury trials.
In my view, it expands and clarifies the current pedigree of jurisprudence stemming from the “Rule in Hodges” from the Hodge’s (1838), 2 Lewin 227, 168 E.R. 1136.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.Over time, this requirement was relaxed: see, e.g., Regina 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….
A. The Facts
Mr. Villarman, the defendant in the within matter, experienced technological issues with his personal laptop computer. He left it with a repair shop to effect repairs of the same. The technician who had carriage of the repairs for the indexed computer found child pornography on the laptop. As such, he called the police. The police searchedthe laptop; and confirmed the presence of child pornography. Mr. Villarmanwas charged with a number of pornography related offences, including possession of child pornography.
B. The Proceedings in the Trial Court and the Alberta Court of Appeal
The criminal trial was conducted before the Honourable Mr. Justice Yamuchi (the “Trial Judge”) of the Court of the Queen’s bench of Alberta (Judicial District of Calgary – Calgary Criminal Division) who found that the mainly circumstantial evidence against Mr. Villarman proved his guilt on the charge of possession of child pornography on the criminal law standard: Beyond a Reasonable Doubt. Justice Yamuchi also also disagreed with defence counsel characterization of the police conduct relative to the police search of the laptop. Defence counsel had (rightly) argued that the Calgary Police Service’s conduct violated Mr. Villarman rights under the Canadian Charter of Rights and Freedoms under Sections 8. That argument was dismissed by the Court of the Queen’s Bench of Alberta (Calgary Criminal Division).
The Alberta Court of Appeal concluded that the Trial Judgehad misstated the current (criminal) law respecting (circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable. The Alberta Court of Appeal accordingly set aside the conviction and entered an acquittal for Mr. Villarman. However, the Court of Appeal declined to consider the Section 8 Charter issues because its acquittal of Villarmanrendered such issues those issues academic. The appeal unit of the Crown Prosecutors’ Offices in Calgary, Alberta appealed the acquittal to the Supreme Court of Canada.
C. Acquittal Overturned by the Supreme Court of Canada
The Supreme Court of Canada heard the Crown Prosecutors and held that their appeal ought to be allowed. The Court set aside the acquittal set aside and remitted the case back to the Alberta Court of Appeal for hearing and disposition of issues raised by criminal lawyers for Mr. Villarman under Section 8 and 24(2) of the Charter.
The Court did provide his ruling on the use of circumstantial evidence and the inferences that may be drawn from the same. It stated 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.
An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. As stated in the found in s. 10.2 of the Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial Council, 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. The Court said at para. 28 to 29
[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.”
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 the Supreme Courthas used, in past cases, 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. The Court stated the following in representative part:
[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.
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.The court averred that 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 Court stated that the QB judge correctly stated the law in relation to circumstantial evidence. Contrary to Mr. Villarman position, 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 Mr. Villarman’s computer knowingly downloaded pornography and that Mr. Villarman 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 Mr. Villarman’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 Mr. Villarman’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.
If you have been charged with a sexual offence such as Child Pornography, it is imperative that you
contact a competent criminal lawyer. For a free consultation on your criminal charges, call Mr. J.S. Patel, Barrister at 403-585-1960