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Evidence - Circumstantial (3). R. v. Brennan
In R. v. Brennan (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against "convictions for possession of various controlled substances for the purposes of trafficking".
The court considers a (Villaroman) circumstantial evidence issue, here where illegal drugs and paraphernalia where found in a car that the defendant was controlling, but of which he was not the registered owner:[7] The case against the appellant was circumstantial. In a case where the Crown relies on circumstantial evidence to establish constructive possession of controlled substances, there can be a conviction only if the accused’s knowledge and control of the substances is the only reasonable inference on the facts. The trier of fact “must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense”: R. v. Choudhury, 2021 ONCA 560, at para. 19; see also R. v. Villaroman, 2016 SCC 33, at paras. 55-56.
[8] In this case, the trial judge correctly observed that knowledge and control of the drugs could not be inferred from the lone fact that the appellant was in control of the vehicle in which the drugs were located. He based his finding of guilt on control of the vehicle and three additional factors: (1) weapons are a tool of drug trafficking and a hatchet was found wedged between the driver’s seat and the centre console; (2) scales are similarly a tool of drug trafficking and scales were located in the centre console; (3) a significant quantity of drugs were found in the vehicle.
[9] The trial judge concluded that it was “a reasonable inference” from these facts that both the appellant and his co-accused would have known that one of the backpacks contained drugs and that “[t]he evidence in totality” supported “a logical inference of both knowledge and joint control of possession.”
[10] The standard of proof beyond a reasonable doubt required that the trial judge be satisfied that there were no other plausible theories consistent with the evidence as a whole that were inconsistent with the guilt of the appellant. A person cannot be convicted on “a reasonable inference” where there are one or more reasonable inferences inconsistent with guilt. The problem in this case is that the appellant advanced a plausible theory inconsistent with guilt that the evidence cannot overcome: that Mr Osborne possessed the drugs alone.
[11] Even in isolation, the evidence relied upon by the trial judge does not support a compelling inference that the appellant knew the drugs were in the vehicle. The appellant’s control of the vehicle was not a strong indication of knowledge given that all the drugs were in a backpack within the vehicle rather than directly in the vehicle itself. Indeed, the appellant did not own or rent the vehicle. The only evidence of the circumstances of his control of the vehicle was that he was seated in the driver’s seat while the vehicle was parked and the engine was idling. It was not known whether he had driven the vehicle to that location or how long he had been in the vehicle. This further weakened an inference from his control of the vehicle that he could be taken to know its contents. Given the challenges in inferring the appellant’s knowledge of the contents of the car without greater clarity as to the nature of his control over the vehicle, the location of the scales inside the console is not strong evidence of his knowledge of the link between the vehicle and drug activity. Although a hatchet, as a weapon, can be a tool of the drug trade, it is not unequivocally so. The fact it was in plain view and near the appellant is not compelling evidence of his knowledge of the drugs. And the significant quantity of the drugs is not an indicium of the appellant’s knowledge since there was no evidence that the drugs were put under his effective control. They were located in a personal container – a backpack – the contents of which were linked to Mr. Osborne by DNA evidence. Mr. Osborne was present in the vehicle and the backpack was on the seat behind him.
[12] The trial judge did not adequately heed the location of the drugs in a backpack, where they were not open to view, and the link of the backpack to Mr. Osborne. Critically, there was no evidence of the appellant’s involvement in any conduct indicative of drug trafficking or in engaging with the backpack in any way. The fact that Mr. Osborne left the backpack behind when he was told he could go – a factor relied upon by the Crown before us – was equally consistent with Mr. Obsorne trying to manage the risk of arrest by leaving the drugs behind when he left.
[13] The only reasonable conclusion is that the totality of the evidence was equally consistent with sole possession by Mr. Osborne. Accordingly, it was an error to find that the case against the appellant had been proved beyond a reasonable doubt.
[14] In light of the equivocal nature of the circumstantial evidence and the gaps in the evidence, the convictions were unreasonable, and it is appropriate for this court to set them aside under s. 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46. . 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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