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Evidence - Circumstantial (3). R. v. Cairns-Cushman
In R. v. Cairns-Cushman (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions "for possession of 213 grams of carfentanil and 2.8 grams of fentanyl (together “the drugs”), for the purpose of trafficking".
The court considers 'circumstantial evidence', here whether the inference drawn was the only one available:[23] The appellant submits that the inference that the appellant was in possession and control of the drugs found in the bedroom was not the only reasonable inference.
[24] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37, Cromwell J., for the court, explained that to convict an accused on circumstantial evidence, the trier of fact must consider other reasonable inferences. However, Cromwell J. further cautioned that the trier of fact is not required to disprove every speculative theory or possibility inconsistent with the accused’s guilt:When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt. I agree with the appellant that the 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. [Citations omitted.] [Emphasis in original.] [25] Inferences may be drawn from the presence or absence of evidence. Inferences must be made in light of all of the evidence, logic, human experience, and common sense: Villaroman, at para. 30; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 36-38.
[26] Deference is owed to a trial judge’s conclusion that there are no alternative reasonable inferences other than the appellant’s guilt: R. v. Bakal, 2023 ONCA 177, at para. 36. As this court instructed in R. v. Loor, 2017 ONCA 696, at para. 22: “An appellate court is justified in interfering only if the trial judge's conclusion that the evidence excluded any reasonable alternative to guilt was itself unreasonable." . R. v. Griggs
In R. v. Griggs (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "possession of drugs for the purpose of trafficking and possession of the proceeds of crime".
The court considers circumstantial evidence, here the rule that such evidence is only admissible where a guilt-consistent inference is the only inference available:[53] Where, as here, the case is largely based on circumstantial evidence, the question is “whether a trier of fact, acting judicially, could reasonably have been satisfied that the appellant's guilt was the only reasonable inference available on the evidence taken as a whole”: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 71. In conducting this assessment, it is not this court’s role “to retry the case or in effect to act as a 13th juror; rather the question is whether the [trier of fact] was entitled to find that the circumstantial evidence in light of human experience, when considered as a whole, and the absence of evidence could exclude all reasonable inferences other than guilt”: R. v. Anderson, 2020 ONCA 780, at para. 30, leave to appeal refused, [2021] S.C.C.A. No. 103; see also R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 36 and 69. In conducting this analysis, it is important not to take a piecemeal approach to the evidence: the question is not whether inferences other than those sought by the Crown could be drawn from individual items of evidence but whether the cumulative effect of the evidence satisfies the standard of proof required of the Crown: R. v. Uhrig, 2012 ONCA 470, at para. 13. . R v Yizhak
In R v Yizhak (Ont CA, 2026) the Ontario Court of Appeal considers when a failure to adduce contrary evidence (though not by testifying) can "in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review". To me this comes very close to drawing a negative inference on exercising the right to silence, as the evidentiary circumstances involved were quite personal (ie. gun in bedroom of own apartment):[25] The appellant called no evidence. He provided no innocent explanation for the presence of a loaded, chambered handgun in his small, one-bedroom condominium. The absence of such an explanation in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review: R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570, at paras. 1-2; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.
[26] The objective evidence established his longstanding connection to and control over the unit. The firearm was readily accessible within that space.
[27] The trial judge considered and rejected the alternative theory advanced at trial.
[28] When the law governing circumstantial evidence is applied to the objective facts of this case, the conclusion that guilt was the only reasonable inference was well within the bounds of reasonableness.
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