R v Villaroman: Wet Roads, Dry Sidewalks, and The Human Intellect
There is something incredibly human about the ability, and our tendency, to infer. Sir Arthur Conan Doyle once waxed and waned that our instinct to draw quick conclusions both defines and hinders the human intellect: “the quick inference, the subtle trap, the clever forecast of coming events, the triumphant vindication of bold theories—are these not the pride and justification of our life’s work?” Similarly, philosopher William Kingdon Clifford has warned us about the danger of this intellectual thrill:
The aim of scientific thought, then, is to apply past experience to new circumstances; the instrument is an observed uniformity in the course of events. By the use of this instrument it gives us information transcending our experience, it enables us to infer things that we have not seen from things that we have seen; and the evidence for the truth of that information depends on our supposing that the uniformity holds good beyond our experience.
Or perhaps, more insightful, and indeed, more pertinent, reasoning comes from Baron Edward Hall Alderson, who, in Hodge’s Case,  168 ER 1136 [Hodge’s Case], expressed similar concerns about his Liverpool jury, which was hearing a case against a man accused of robbery and murder. “The proneness of the human mind,” Baron Alderson worried, “to look for—and often slightly to distort the facts in order to establish such a proposition [of guilt]—forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt” (Hodge’s Case, 1137).
In R v Villaroman, 2016 SCC 33 [Villaroman], the Supreme Court of Canada (SCC) had to revisit Baron Alderson’s reasoning, and missed an invaluable opportunity to enshrine its wisdom.
The respondent, Mr. Oswald Villaroman, was having problems with his laptop, so he left it with a repair shop. In the midst of performing the repairs, the repair technician stumbled upon an iTunes folder containing child pornography. The repair technician “thought the number of files ruled out a random occurrence” and called the police, who seized the laptop and subsequently charged Mr. Villaroman. Justice Yamauchi of the Alberta Court of Queen’s Bench found Mr. Villaroman guilty of possession of child pornography, in spite of the fact that the evidence against Mr. Villaroman was almost entirely circumstantial. The Court of Appeal unanimously quashed the conviction and entered an acquittal on the basis that, while there was child pornography on Mr. Villaroman’s laptop, someone else could have downloaded it without him knowing. The Court of Appeal’s decision was further substantiated by the absence of evidence from the Crown about where the laptop was kept and only minimal evidence about who used it. The Crown appealed to the SCC, arguing that the Court of Appeal erred by requiring the Crown in effect to disprove all innocent possibilities.
The central figures in this case, at least for our purposes, are: Mr. Alan Soczak, the technician who examined the computer, and Mr. LaFontaine, a forensic analyst who testified that there was only one user account associated with the computer (named “oswaldvillaroman,” that accessed the computer regularly) and that the files had been download using Limewire. The testimonies of these two men composed the circumstantial evidence the Crown put forward and relied upon almost solely. The core error identified by the Court of Appeal was that Justice Yamauchi erred in his treatment of said circumstantial evidence. Justice Yamauchi instructed the jury using the rule Baron Alderson outlined in Hodge’s Case. The jury was told that in order to convict, they must be satisfied not only that the circumstantial evidence was consistent with guilt but rationally inconsistent with any other conclusion than guilt. The sticking point for the Court of Appeal, and indeed, the nub of the case itself, was whether Justice Yamauchi erred by requiring that “any other conclusion than guilt” be based on the evidence. In essence, the Court of Appeal found that Justice Yamauchi erred by requiring that an inference supporting a conclusion other than guilt be based on evidence rather upon a lack of evidence. The Court of Appeal therefore reasoned that Justice Yamauchi was wrong to exclude from consideration innocent explanations that had no foundation in the evidence.
Street Cleaners and Circumstantial Evidence
It is crucial, at this point, to review the difference between circumstantial and direct evidence in order to better understand why the concern surrounding inferences arises for the former and not the latter. Eye-witness testimony, what a witness saw or heard, is considered direct evidence. In comparison, fingerprints are an example of circumstantial evidence: evidence of circumstances from which a juror or judge can reasonably infer the fact that cannot be proven directly. My favourite example of direct evidence comes from R v Burton  169 ER 728 [Burton], given by Justice Maule: “If a man go into the London Docks sober without means of getting drunk, and comes out of one of the wine cellars very drunk … I think it would be reasonable evidence that he had stolen some of the wine in that cellar” (Burton, 284). Put simply, direct evidence only requires the jury to assess the credibility of the witness. With circumstantial evidence however, the jury must also ensure their inferences are reasonable.
Justice Cromwell provided a much less amusing (but undoubtedly more helpful) example in Villaroman:
It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (Villaroman, para 30).
The subject of this post surrounds my concern with the Court’s ruling on jury instruction and the rule from Hodge’s Case. Justice Cromwell, for a unanimous Court, wrote, “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” (Villaroman, para 18). To the reader, this comes as quite the surprise, given that Justice Cromwell spends the majority of his decision elegantly articulating the reasons why the jury instruction from Hodge’s Case is so crucial, his reasons structured as a beautifully rising crescendo, only to hit a final note that rings flat and hesitant.
Critics of the rule in Hodge’s Case, like scholar Eliot Herzig, have argued that, “the Court should use Villaroman as an opportunity to reject the formula stated in Griffin (note: at the time, Griffin was the most recent case that had refined the rule from Hodge’s Case)…because it is unnecessary and confusing….[the Court] should only refer to the standard burden of proof – proof of guilt beyond a reasonable doubt.” Justice Cromwell strongly dismisses this line of thinking as a misinterpretation of both the reasonable doubt standard and the rule in Hodge’s Case (the following quote is lengthy, but incredibly articulate and well-reasoned, and thus, should be reproduced in its entirety):
The Court has generally described the rule in Hodge’s Case as an elaboration of the reasonable doubt standard….However, that is not all that Hodge’s Case was concerned with. There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge’s Case. He noted the jury may ‘look for — and often slightly … distort the facts’ to make them fit the inference that they are invited to draw. Or, as his remarks are recorded in another report, the danger is that the mind may ‘take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole’. While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described — the danger of jumping to unwarranted conclusions in circumstantial cases — remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes. The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented (emphasis added, Villaroman, paras 26-28).
Justice Cromwell also dismisses the common critique that an explanation of the difference between direct and circumstantial evidence is lengthy and tedious. Justice Cromwell references a succinct example of the explanation from the Model Jury Instructions on his way to concluding that such explanations are included in most criminal jury charges and “rarely [cause] difficulty” (Villaroman, para 23). Thus, an explanation of the difference between direct and circumstantial evidence is not inconsistent with Justice Moldaver’s instruction in R. v. Rodgerson,  2 SCR 760 to make jury charges brief and straightforward.
Astonishingly, despite his overwhelming support for the charge, Justice Cromwell would not go so far as to say it should be required in all cases. Instead, he posited: “it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence” (emphasis added, Villaroman, para 22) and “that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to be cautioned about too readily drawing inferences of guilt” (emphasis mine, Villaroman, para 30). In an effort to provide clarification regarding this charge, it seems only greater confusion and uncertainty is destined to arise.
Benjamin Berger’s article, “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated,” which was cited by Justice Cromwell in Villaroman, is salient here. Berger eloquently outlines the historical and epistemological underpinnings of the rule from Hodge’s Case, and in particular, the ways in which the common law system of evidence emerged to embrace the Aristotelian valuation of sensory perception over inferential reasoning. Berger argues that the rule from Hodge’s Case is not simply a redundant articulation of the burden of proof, but rather, it serves to address the distinct risks associated with circumstantial evidence. At the head of these “risks” for Berger, is that jurors will simply rely on “the best” story:
Baron Alderson was entirely correct when he spoke of ‘the proneness of the human mind to look for – and often slightly to distort the fact in order to establish’ a proposition of guilt. This psychological understanding has been confirmed by social scientific work that adopts a ‘story’ model of decision-making, asserting that juries decide cases based on a process of selecting the best-fit narrative. Of course, guilt in a criminal trial ought not to be founded upon the ‘best’ story, but upon guilt being the only reasonable story. Further, [Albert J.] Moore [in his article, “Trial By Schema: Cognitive Filters in the Courtroom” (1989) UCLA L Rev 37] shows that ‘schemas,’ defined as categories in the mind that contain information about a particular subject, predispose jurors to draw particular inferences where such inferences are necessary. The rule in Hodge’s Case therefore addresses a particular apprehended danger latent in circumstantial evidence.
Berger also cites David Schum and Anne Martin, who show in their article, “Formal and Empirical Research on Cascaded Inference in Jurisprudence,” that “individuals asked to mentally aggregate a large collection of evidence may ignore, discard, or integrate over contradictory evidence and otherwise overlook other subtleties in evidence.” Ultimately, Berger makes it overwhelmingly clear that social science has confirmed what Baron Alderson observed long ago: jurors will innately distort and ignore evidence so as to have it conform with a “best-fit” story.
Our law is at its best when it attempts to understand the human condition, by ironing out our complexities, or finding ways to temper human intellect when it becomes too cavalier. We should not disguise our ignorance to the social science evidence we have before us in calls for “simpler or more efficient jury charges.” Nor should we be content with more confusion surrounding jury instruction. The charge is brief, its importance is undeniable, and the answer is clear: it must be mandatory.