R. v. Villaroman

(Criminal law — Evidence — Circumstantial evidence)

On appeal from a judgment of the Alberta Court of Appeal, 2015 ABCA 104, 2013.

V was having problems with his laptop computer, so he left it with a repair shop. The repair technician found child pornography on the laptop. He called the police, whose search of the laptop confirmed the presence of child pornography. V was charged with a number of pornography related offences, including possession of child pornography. The trial judge found that the mainly circumstantial evidence against V proved guilt on the charge of possession of child pornography beyond a reasonable doubt. The trial judge also disagreed with V that the police search of the laptop violated s. 8 of the Canadian Charter of Rights and Freedoms. The Court of Appeal concluded that the judge had misstated the current law respecting circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable. The Court of Appeal therefore set aside the conviction and entered an acquittal. The Court of Appeal declined to consider the Charter issues because its acquittal of V made those issues academic.

Held (9-0): The appeal should be allowed, the acquittal set aside and the case remanded to the Court of Appeal for hearing and disposition of theCharter ss. 8 and 24(2) issues. 

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. 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. 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. 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 this Court has used 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.

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. 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 judge correctly stated the law in relation to circumstantial evidence. Contrary to V, 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 V’s computer knowingly downloaded pornography and that V 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 V’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 V’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.

Reasons for Judgment by Cromwell J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Neutral Citation: 2016 SCC 33

Docket Number: 36435