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Articles and Publications
September 2016

Circumstantial Evidence should not be Overlooked
by Claims Adjusters

Case Study: R v Villaroman, 2016 SCC 33

Marie-Pier Couturier
Marie-Pier Couturier,
Associate Lawyer

Irina Sfranciog
Irina Sfranciog,
Associate Lawyer

by Marie-Pier Couturier, and Irina Sfranciog

In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.

Facts

Villaroman was having issues with his laptop which prompted him to bring his laptop into a repair shop. The technician at the repair shop found child pornography on the laptop and called the police. The police searched the laptop and confirmed the presence of child pornography. Villaroman was charged with various criminal offences, including possession of child pornography.

At trial, the judge found that the mainly circumstantial evidence (i.e. the existence of child pornography on the laptop) was sufficient to find Villaroman guilty on the charge of possession of child pornography beyond a reasonable doubt. Villaroman appealed his conviction. The Court of Appeal set aside the conviction and acquitted Villaroman after finding the trial judge had misstated the law of circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable. The Crown appealed.

The Supreme Court of Canada allowed the appeal and articulated the 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. 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. 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 Difference Between Circumstantial and Direct Evidence

In Villaroman, the Supreme Court of Canada made the clearest pronouncement of the difference between direct evidence and circumstantial evidence.

  • Direct evidence is evidence which, if believed, proves a fact or resolves a matter in issue. The only inference involved in direct evidence is that the testimony is true.

  • Circumstantial evidence on the other hand finds its probative value in the inferences to be drawn from the facts. In other words, circumstantial evidence, if believed, allows a fact to be inferred. However, a jury must be cautioned about “jumping to conclusions” or “filling in the blanks” with circumstantial evidence.

Example:

The example given during the Appeal was looking out the window, seeing the road is wet, seeing its raining and/or assuming it had been raining (i.e. direct evidence). However, taking a closer look might reveal that the sidewalks are dry, or a sound that could be coming from a street-cleaning truck can be heard in the distance (i.e. circumstantial evidence).

Distinguish Between Inference and Speculation

Traditionally, inferences had to be taken from direct evidence of facts. Villaroman has changed this thought process; the Supreme Court of Canada ruled that it is now acceptable to pull inferences from circumstantial evidence.

  • Inference is something that is reasonable.
  • Speculation can lead to erroneous, flawed and faulty inferences.

The Supreme Court of Canada indicated that when it comes to circumstantial evidence, any inferences based on circumstantial evidence must be reasonable, and not speculative. The danger is that speculative inferences can cause a trier of fact to make a leap of logic, unsupported by the evidence.

Applicability to Subrogation or Civil actions

to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative

In Villaroman, the Supreme Court of Canada clarified the difference between speculation and plausible theories. The Court stated that "to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative"1.

The effect of the Villaroman decision will certainly have practical implications concerning how to use circumstantial evidence in criminal cases. However, the principles enunciated by the Supreme Court of Canada may also have an impact on circumstantial evidence in civil cases, where the burden of proof (balance of probabilities) is much lower. While Villaroman involved a criminal charge, the principles would be equally, if not more so, applicable in a civil action to prove negligence, where proof need only be made on a balance of probabilities rather than beyond a reasonable doubt.

The principles outlined by the Supreme Court of Canada regarding how a trier of fact ought to consider circumstantial evidence have greater application and can be transposed to the civil context. In Villaroman, the mere existence of child pornography was ultimately sufficient to overturn Villaroman's acquittal, in essence, finding him guilty beyond a reasonable doubt. This is a decision that should be kept in mind for all subrogation claims (especially suspected arson) where issues of causation in particular are often provable only through circumstantial evidence. 

Before Villaroman, circumstantial evidence was generally regarded as being weak argument. However, in some cases, circumstantial evidence is all that is available to connect a party to a loss. For instance, in fire claims, there could be circumstantial evidence that a fire was caused by wet rags soaked in combustible chemicals however, there is no direct evidence of a wet rag found in the proximity of the origin of the fire. Following Villaroman, circumstantial evidence such as usage of rags, and chemical products, in proximity of the fire origin becomes essential to determining the probable cause of the fire loss.

Villaroman's application to the civil context can mean that the trier of fact should not rely too heavily on hypothetical alternative theories which are purely speculative. Rather, the trier of fact must make reasonable inferences based on the circumstantial evidence and avoid leaps of logic.

...the trial of an arson case revolves around the reasonableness of circumstantial evidence.

As it relates to arson, case authorities have ruled that suspicions alone are not enough to support a finding of arson. Direct evidence of arson is exceedingly rare. It certainly will be rare to have a “smoking gun” case in which a witness admits that he or she started a fire in a house. Consequently, the trial of an arson case revolves around the reasonableness of circumstantial evidence.

Villaroman can also be applied to personal injury cases. When there is no direct evidence of a motor vehicle accident itself, either because the defendant denies being involved in the vehicle and there are no other witnesses, then circumstantial evidence becomes important in leading the jury to believe that the accident did in fact occur and the defendant is liable for the accident. For instance, circumstantial evidence can be obtained through photographs of the location, diagrams of the accident, admission of presence in location, photographs of damages and paint transfer from one car to another, and much more.

The principles enunciated by the Supreme Court of Canada in Villaroman may also have application to cases involving theft. In cases where there is a lack of direct evidence of the theft itself, such as video surveillance or eyewitness testimony, then circumstantial evidence such as similar fact or modus operandi evidence,fingerprints at the scene or physical possession of the stolen items may now be sufficient to find civil liability. As such, circumstantial evidence should not be overlooked by claims adjusters during the early but critical stages of investigating the loss.

Conclusion

Currently, Villaroman is the leading case on circumstantial evidence and will likely be referred to in future civil actions where circumstantial evidence interpretation lacks clarity.

Circumstantial evidence, if based on reasonable inferences, will likely be sufficient to effectively demonstrate that the defendant acted negligently and thus, allow successful recovery of damages in a civil action.


1 Villaroman, para. 41.


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