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Evidence - Direct Evidence. R. v. Rioux [contrast between direct and circumstantial evidence]
In R. v. Rioux (SCC, 2025) the Supreme Court of Canada dismissed a criminal defendant's appeal, this brought against a successful Crown appeal for sexual assault at the Quebec CA, that brought by the Crown against an acquittal.
The court contrasts direct and circumstantial evidence, here in this sexual assault context:(1) Constituent Elements of Sexual Assault and the Difference Between Direct and Circumstantial Evidence
[56] To establish sexual assault, the Crown must establish both constituent elements of the offence beyond a reasonable doubt: being the actus reus and the accused’s mens rea. It may meet its burden through direct or circumstantial evidence, or any combination of both (H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at §§ 3:5-3:7; D. Stuart, Canadian Criminal Law: A Treatise (8th ed. 2020), at pp. 183-86 and 645-46).
[57] The term “direct evidence” means evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption (R. v. Greenwood, 2022 NSCA 53, 415 C.C.C. (3d) 89, at para. 163; Black’s Law Dictionary (12th ed. 2024), at p. 697, sub verbo “evidence”). Direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial” (S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶¶2.94-2.102). The testimony, if believed, establishes the fact testified to (see S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 31:2). It is put forward to directly establish a fact which resolves a matter. When accepted, it, by itself, proves a point. It requires no inference or deduction, additional supporting information or links to other pieces of evidence (M. Gourlay et al., Modern Criminal Evidence (2022), at p. 152). Direct evidence is based on the witness’s senses, such as personal observations about what they saw, heard, or experienced.
[58] Circumstantial evidence tends to establish those facts which are at issue at trial, but it does so indirectly (Hill, Tanovich and Strezos, at § 31:3). It concerns the proof of facts from which inferences can be drawn about the facts relevant to the legal issue under consideration (see Gourlay et al., at pp. 152-53; B. L. Berger, “The Rule in Hodge’s Case: Rumours of its Death Are Greatly Exaggerated” (2005), 84 Can. Bar Rev. 47, at p. 50; D. M. Tanovich, “Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide” (2013), 99 C.R. (6th) 338, at pp. 340-41). Each piece of evidence need not alone lead to the conclusion sought to be proved, and pieces of circumstantial evidence can be combined to justify the inference that a certain fact or state of mind exists (see Lederman, Fuerst and Stewart, at ¶¶2.96 and 2.102; see, e.g., R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 21; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 36; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 74).
[59] While both forms of evidence are equally admissible and potentially probative, the benefit of direct evidence is that it contains only one source of possible error: “the unreliability of human testimony” (John v. The Queen, 1970 CanLII 199 (SCC), [1971] S.C.R. 781, at pp. 788 and 789-90, per Ritchie J.; see also Hill, Tanovich and Strezos, at § 31:2). The value of circumstantial evidence also depends on the credibility and reliability of the witness, but it may also suffer “from the difficulty of drawing a correct inference” from that evidence (John, at p. 788). The rationality, logic and strength of the requested inference can fall anywhere on the continuum between nonsensical and incontrovertible.
[60] The law does not distinguish between circumstantial evidence and direct evidence in terms of weight or importance (Lederman, Fuerst and Stewart, at ¶2.94). Either type of evidence, or a combination of both, may be enough to meet the applicable burden of proof, depending on the facts of the case as determined by the finder of fact. That said, in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, this Court set out the principles to follow where the Crown’s case or an element of a criminal offence turns on circumstantial evidence. The inferences to be drawn from the circumstantial evidence depend on the nature of the evidence, the live issues and the theories of the parties. If after considering that evidence, satisfaction as to the existence of the elements of the offence is the only reasonable or rational inference, the trier of fact should draw the inference that the elements of the offence, and hence guilt, have been established beyond a reasonable doubt (see para. 41).
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