Facts in issue cannot always be proved by direct evidence alone.
“Usually, witnesses testify as to what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence.
Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.”
10.2 of the Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial Council
It has become standard in Canada for the trial judge, in the course of the instructions to the jury, to explain to the jury the difference between direct and circumstantial evidence. This instruction is usually accompanied by a simple everyday example (such as the one set out in the Model Jury Instruction above). In addition, the judge will usually explain that circumstantial evidence can present a further problem not necessarily present in direct evidence, namely, that proof of the fact in issue depends on the correctness of the inference to be drawn and not simply on the reliability and credibility of the witnesses.
In the early part of this century, it was considered necessary for the trial judge to give the jury a special instruction on the application of the burden of proof in cases of circumstantial evidence. This special instruction was known as the rule in Hodge’s Case.
It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.
R. v. Villaroman, 2016 SCC 33, at para 18, 22
Where the Crown’s case against the accused is based entirely on circumstantial evidence, the test is the one stated by Cromwell J. in R. v. Villaroman, 2016 SCC 33, at paras. 55 and 56:
Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence
[Cases and citations omitted].
The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”