Test for non-suit

R. v. Arnold, 2011 PECA 15 deals with the test for non-suit in criminal and quasi-criminal matters. In effect the court asks 'could a trier of fact properly convict?'. More specifically, is there some evidence of each and every element of the offence? The test is seldom an issue except in the context of circumstantial evidence. The Court held:

[6]               In my opinion, the trial judge made a correct statement of the applicable test, but she misapplied the test.
 

[7]               The trial judge stated that a motion for non-suit requires the judge to determine whether or not there is any evidence upon which a reasonable trier of fact properly instructed could return a verdict of guilty; and she stated the direction that the judge is required to dismiss the motion if there is admissible evidence which could, if it was believed, result in a conviction.  She referred to the directions by the Supreme Court of Canada in The United States of America v. Sheppard, [1977] 2 S.C.R. 677, and the leading cases which followed, up to and including R. v Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679.  She interpreted the test as requiring there be some evidence of each and every element of the offence, which she listed as: for sexual purpose, touching, directly or indirectly, with a part of his body any part of the body of the complainant; and since it was specifically set out in the information, the Crown had to prove that he touched the body of the complainant with a part of his body, to wit his hands and his penis.  The trial judge's directions were correct up to this point.

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[13]           On considering a motion for non-suit, when addressing circumstantial evidence there is a corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw.  This weighing, however, is limited.  This does not permit the judge deciding a motion for non-suit to draw inferences from the facts or to assess credibility.  The judge does not ask whether she herself would conclude that the accused is guilty.  She asks only whether the evidence, if believed, could reasonably support an inference of guilt.  The question is whether the remaining elements of the offence, upon which the Crown has not advanced direct evidence, may reasonably be inferred from the circumstantial evidence: R. v. Arcuri, 2001 SCC 54 (CanLII), 2001 SCC 54, at ¶1, 23-25, and 30; Quigley, Tim: Procedure in Canadian Criminal Law, 2nd Ed. (Carswell, 2005), §14.3.