R. v Layman, 2024 NLCA 16
[17] Speculation in applying the standard of proof beyond a reasonable doubt has been considered in the jurisprudence. The Supreme Court of Canada’s recent decision in R. v. Kruk, 2024 SCC 7 makes clear that basing reasonable doubt on speculation is an error of law:
[68] Speculation as an error of law arises where a trial judge has found that certain evidence “creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt” (Wild v. The Queen, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, at p. 111). In other words, it is an error of law to fail to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture (see Wild; Rousseau v. The Queen, 1985 CanLII 42 (SCC), [1985] 2 S.C.R. 38; R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57; R. v. Clark, 2015 BCCA 488, 407 D.L.R. (4th) 610, at para. 43, aff’d 2017 SCC 3, [2017] 1 S.C.R. 86).
[18] Wild v. Queen, 1970 CanLII 148 (SCC), [1971] S.C.R. 101 is the foundational authority for the proposition that it is a legal error to base a decision respecting reasonable doubt on speculation. Wild involved whether the accused, who was facing a criminal charge for driving a vehicle involved in a fatal collision, was actually the driver. Although he had no memory of the accident, the accused argued that one of the persons who died in the accident was the driver, and that he was in the back seat of the vehicle when the impact caused his body to be propelled into the driver’s seat and his leg to be pinned under the front dash such that he had to be extracted from the vehicle by means of a hydraulic jack.
[19] The trial judge acquitted the accused, saying that while it was probable the accused was the driver, it was possible, given that the accused had no injury to his upper body, that the accused had been in the back seat at the time of the collision and that one of the deceased occupants had been driving.
[20] The Crown appealed, arguing that the Judge had acquitted the accused when there was no evidence on the basis of which a reasonable doubt could arise as to whether the accused was the driver. The Alberta Court of Appeal agreed, characterizing the trial judge’s decision as fanciful and based on conjecture. The appellate court stated that proof beyond a reasonable doubt does not mean that the Crown must negate every conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused (Wild, at 111).
[21] The Supreme Court of Canada upheld the appellate court, ruling that the trial judge’s reasonable doubt was not a rational conclusion but was a conjectural conclusion that might be inconsistent with the guilt of the accused (at 114) (Emphasis added). Ritchie, J., concurred, but added that the key word is “rational”, and that the trial judge’s “matter of conjecture” was not a rational conclusion that could give rise to reasonable doubt about the accused’s guilt (at 119).
[22] In R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, the Supreme Court of Canada reiterated that it is an error of law to base a conclusion of reasonable doubt on pure conjecture (at 71).
[23] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Court addressed the role of speculation in circumstantial cases. Villaroman was a case involving possession of child pornography. The issue was whether the accused knew that he possessed the pornography found on his computer. Aside from owning the computer, the evidence was that downloading the pornographic material on the computer was not automatic, nor was opening the file containing the pornography automatic. The trial judge concluded that the accused was knowingly in possession of the material and convicted him. The Court of Appeal reversed. The Supreme Court of Canada restored the conviction, saying that the appellate court had focused on hypothetical alternative theories, and at times, engaged in speculation rather than on whether the inferences the trial judge drew from the evidence were reasonably open to him to draw.
[24] In Villaroman, the Court reiterated that reasonable doubt is a doubt “based on reason and common sense, which must be logically based upon the evidence or lack of evidence … assessed logically, and in light of human experience and common sense” (para. 36). Because Villaroman was a circumstantial case, reasonable possibilities other than guilt were considered in accordance with the long-established law respecting circumstantial cases. In this regard, the Court said 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” (para. 37). Moreover, the Court was clear that inferences drawn from the evidence must be based on the application of logic and experience to the evidence or absence of evidence, not on speculation (para. 37).
[25] The direction in Villaroman, that inferences drawn from the evidence must be reasonable and that the Crown does not need to negative every possible conjecture which might be consistent with an accused’s innocence, is equally if not more applicable to non-circumstantial cases.
[26] In R. v. Blanchard, 2022 NLCA 15, and recently in R. v. E.S., 2024 NLCA 12, this Court ruled that speculation does not properly inform a conclusion of reasonable doubt. In Blanchard, the accused faced a criminal charge relating to a fatal car accident. The Court ruled that the judge’s speculative reason for the accident was not a proper basis for her reasonable doubt (paras. 68-69). In E.S., the Court ruled that the judge’s speculation about possible evidence relating to a collateral issue was not a proper basis on which to rest a conclusion of reasonable doubt. See also E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 3rd ed at § 23:16-23:17, where Ewaschuk identifies “conjectural possibility” and “speculation” as errors of law.
[27] In R. v. Brodeur, 2014 NBCA 44, the New Brunswick Court of Appeal considered the legal effect of factual findings based on speculation. Brodeur involved the roadside detention of a driver whose vehicle contained a large quantity of marijuana. In acquitting the accused, the trial judge speculated about what the investigating officer could have done in the available timeframe, and also stated that it would be impossible to smell perfume in the rain (which the officer said he smelled upon approaching the vehicle in question). The appellate court ruled that the trial judge’s speculation had led him to a verdict that was the product of significant error.
[28] In short, in applying the principle of reasonable doubt, a court must properly consider whether the whole of the evidence proves the offence charged beyond a reasonable doubt rationally connected to the evidence or lack of evidence — not a fanciful or irrational doubt, nor a doubt based on speculation.
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