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Evidence - Circumstantial (2). Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court addresses tension perceived to exist between individual circumstantial 'inference' conclusions, and the more general standard of proof principle that a case should be decided on the "cumulative effect of all the evidence":[103] In concluding that Mr. Candusso traded while in possession of Amaya MNPI, the Tribunal majority weighed the totality of the evidence and circumstances. It did not examine individual pieces of evidence in isolation, as Mr. Candusso does in his submissions. Where (as here) arguments are advanced that individual items of circumstantial evidence are explained on bases other than guilt, “it is essential” to keep in mind the cumulative effect of all the evidence. As the Court of Appeal stated in R. v. Uhrig, 2012 ONCA 470, at para 13:Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction…. [Emphasis added.] [Citation omitted.] [104] I see no reversible error in the Tribunal majority’s findings that Mr. Candusso had opportunity to acquire Amaya MNPI or that his trades were timely, uncharacteristic, risky and profitable. Mr. Candusso clearly had the opportunity to acquire Amaya MNPI from Mr. Kitmitto. They were in daily contact as close friends and roommates. As well, I agree with the OSC that the evidence the Tribunal majority relied on, taken as a whole, supports the findings that Mr. Candusso’s trades were timely, uncharacteristic, risky and profitable: see Merits Decision, at paras. 260(b), (c) and (d).
[105] I also see no error in the Tribunal majority’s reliance on these findings to conclude that Mr. Candusso traded while in possession of Amaya MNPI. The opportunity to acquire MNPI together with timely and profitable trades support that inference: Suman, at para. 302. It does not assist the analysis to suggest that the trades were not as timely, uncharacteristic or risky as they hypothetically could have been. That is not a sufficient basis to show that the Tribunal majority’s findings were clearly wrong, unreasonable, or unsupported by the evidence. I am satisfied that the cumulative effect of all the evidence and circumstances reasonably supports the inferences drawn by the Tribunal majority: Uhrig, at para. 13; Finkelstein v. Ontario (Securities Commission), 2018 ONCA 61, 139 O.R. (3d) 166, at para. 101, leave to appeal refused, [2018] S.C.C.A. 98. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
In this administrative CMT context, the court considers the possibility of a 'circumstantial' alternative inference (or suspect):[67] Mr. Kitmitto says that because the case against him is based solely on circumstantial evidence, the Tribunal was required to consider reasonable competing inferences that were available on the evidence. He relies on R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 37-38, in which the Supreme Court of Canada stated:37. When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt ... . [T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” …. “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.
38. Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Citations omitted.] . R. v. Beauvais
In R. v. Beauvais (Ont CA, 2023) the Court of Appeal considered a circumstantial [Villaroman] evidence issue in a child pornography conviction appeal, here the burden on the Crown to negate plausible alternative non-guilt factual theories:[23] Constable Fasullo testified that the scan he conducted on the laptop exposed a virus which could “[execute] commands from an attacker”. Although Constable Fasullo did not testify that the virus in fact allowed a third-party attacker to download child pornography onto the laptop, his evidence was nevertheless sufficient to move this inference from the realm of pure speculation to that of a reasonable possibility. As the Supreme Court cautioned in Villaroman, at para. 35, “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts”. It was therefore not incumbent on the appellant to adduce further evidence to positively support this inference. The burden instead rested with the Crown to negate it.
[24] Had Constable Fasullo simply testified to the presence of a virus, and nothing more, the Crown might not have had any further work to do, but his description of the virus in this case as permitting the attacker to execute commands provided an air of reality to the suggestion that someone may have used the appellant’s computer remotely to access and download child pornography. This inference was not speculative but grounded in the expert’s description of the possibility that this virus could provide an external user with the power to execute commands on the computer. This evidence placed a tactical obligation on the Crown to present some evidence to negate the possibility that a third-party attacker was responsible for downloading the child pornography, failing which this evidence could potentially create a reasonable doubt. . R. v. MacAdam
In R. v. MacAdam (Ont CA, 2023) the Court of Appeal stated the Villaroman principle of circumstantial evidence:[8] The expert’s testimony laid the foundation for a reasonable possibility inconsistent with guilt. Instead of explaining why the Crown had proven possession for the purpose of trafficking beyond a reasonable doubt when its own expert had conceded another reasonable possibility, the trial judge required the defence to establish the hypothetical scenario with proven facts. However, in circumstantial cases, inferences inconsistent with guilt do not have to be based on proven facts but must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: see R. v. Villaroman, 2016 SCC 33 at para. 37. While the Crown did not have to negative every possible conjecture, it had to negative the opinion put in play by the expert.
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