Canadian Criminal Evidence/Inferences

General Principles An inference, like a presumption, is a method of establishing fact without direct evidence. An inference is discretionary on the judge to make, but it must be supported by evidence. Any rational conclusion must be based on evidence. The ability of a judge to make inferences should be limited, otherwise it would leave the crown in the position where they would have to disprove "every possible conjecture, no matter how irrational or fanciful". R. v. Torrie, [1967] 3 C.C.C. 303 Evans J.A. at p. 306 ("I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.") Caswell v. Powell Duffy Associated Collieries Ltd., [1940] A.C. at p. 169("...inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.") R. v. Lukianchuk, [2001] B.C.J. No. 3000, 2001 BCSC 119, Romilly J. at paragraph 19: ("The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.") The difference between an inference and mere speculation is a fine line to distinguish.See Watt's Manual of Evidence, 2011 (toronto, Carswell, 2011) at p.104 as cited in R v Balendran, 2012 ONSC 4016 at para. 19 Where the accused's post-offence conduct is "equally explained by" or "equally consistent with" two or more offences, there should be a "no probative value" instructions.R v White 1998 CanLII 789 (SCC), [1998] 2 SCR 72, at para. 28 R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129 at pp. 145 and 147 2 Failing to Call Certain Witnesses The Crown does not need to call any witnesses it considers to be unnecessary.Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232, at p. 241 R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751, at para. 14 Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.Jolivet at para. 29 In some instances, an adverse inference may be drawn from a party's failure to call certain witnesses.R. v. Ellis, 2013 ONCA 9 (CanLII) at para. 45 There are roughly two groups of inferences. First, the adverse inference will often be drawn where a party fails "to produce a witness reasonably assumed to be favourably disposed to that party"R. v. Ellis at para. 46 Second, the inference may be drawn where the party failing to call has "exclusive" control over the witness.Ellis at para. 46 McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at para. 264 The party failing to call must be given the right to explain the failure to call the witness.Jolivet, at para. 26; Wigmore on Evidence(Chadbourn Rev., 1979), Vol. 2, at para. 290 The inference may only be drawn where there is no other reasonable explanation for the failure to call the witness.Ellis at para. 48 R. v. Lapensee, 2009 ONCA 646 (CanLII), 99 O.R. (3d) 501, at para. 42 R. v. Rooke 1988 CanLII 2947 (BC CA), (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 512-513 Given the risk of shifting the onus onto the defence. Such an inference should only be drawn with the "greatest of caution" when dealing with an inference against the defence.Ellis at para. 49 R v Lapensee, at para. 45 R. v. Zehr, (1980), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68 2 See Also Canadian Criminal Law/Recent Possession