R. v. Doodnaught, 2017 ONCA 781
[66] Where conduct occurs and the Crown alleges that a particular person did it personally, not through an agent or some other instrumentality, it seems obvious that the person’s physical presence, within the proper range of time and place, forms one step on the way to proof that the person is responsible for the conduct. In this respect, we should bear in mind that where and when some offences are committed can be established with greater precision than others.
[67] It necessarily follows that evidence which shows or tends to show that an accused was present at or near a place at or near the time an offence was committed is relevant, material and prima facie admissible. Said in another way, evidence of opportunity alone, and not exclusive opportunity, is a sufficient showing of relevance and materiality to render it prima facie admissible. Evidence of opportunity typifies the concomitant use of circumstantial evidence: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983), at §131, p. 1704.
[68] The circumstances involving opportunity will vary according to the facts of individual cases. It is self-evident that evidence of opportunity alone is not sufficient to establish the guilt of an accused beyond reasonable doubt: R. v. Ferianz, 1962 CanLII 884 (ON CA), [1962] O.W.N. 40 (C.A.), at p. 42. And it is always open to a party, such as an accused, to adduce evidence explaining away opportunity. Such as by evidence of lack of physical capacity, or by evidence that tends to show the equivalent (or better) opportunity of others: Wigmore, at § 132, p. 1706. See also, R. v. Minhas (1986), 1986 CanLII 144 (ON CA), 29 C.C.C. (3d) 193 (Ont. C.A.), at p. 219.
[69] Evidence of opportunity, insufficient on its own to establish guilt beyond reasonable doubt, may also have a different complexion placed upon on it by other evidence, as for example, evidence of skill, expertise, physical capacity, or possession of tools by which an offence was committed: R. v. Davison (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 436-437; R. v. Syms (1979), 1979 CanLII 2994 (ON CA), 47 C.C.C. (2d) 114 (Ont. C.A.), at p. 116. See also, Wigmore, at §§ 83-88, pp. 1599-1604. In a similar way, the principle of explaining away opportunity may permit the introduction of evidence of lack of skill, expertise, physical capacity or tools: Wigmore, at § 132, p. 1706.
[70] Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt: See, R. v. Imrich, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622, affirming (1974), 1974 CanLII 42 (ON CA), 21 C.C.C. (2d) 99 (Ont. C.A.).
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