This week’s top three summaries: R v Kirkey, 2026 BCSC 973: #fingerprints, R v Esrabian, 2026 CanLii 53667: faint #hope, R v Slade, 2026 ONCA 381: command #hallucinations

R v Kirkey, 2026 BCSC 973

[May 15, 2026] Circumstantial Evidence: Fingerprints [Gibb-Carsley J.]

AUTHOR’S NOTE: While the legal test governing circumstantial evidence is well established, its application can become blurred when different forms of evidence are combined. Cases involving fingerprints on movable objects often provide some of the clearest illustrations of how the circumstantial evidence test operates in practice.

A fingerprint establishes only that the accused touched the object at some point. Where the object is movable, however, the fingerprint alone does not establish when the contact occurred or whether it took place in circumstances connected to the offence. For that reason, fingerprint evidence on a movable item ordinarily requires additional evidence capable of supporting the inference that the print was deposited during the commission of the crime rather than through an innocent interaction.

This case illustrates that principle. The Crown relied on a fingerprint found on a Christmas card associated with the offence. Yet the card was a movable object that could have been handled in a variety of innocent circumstances before the crime occurred. Without additional evidence linking the timing or circumstances of the fingerprint’s deposition to the offence itself, the evidentiary foundation for the inculpatory inference remained incomplete.

The reasonable alternative to guilt was straightforward: the fingerprint may have been left on the card while it was displayed for sale in a store or otherwise available to the public before it came into the possession of the offender. That possibility did not require proof from the defence. It arose naturally from the nature of the evidence itself.

Because the Crown’s case depended upon drawing an inculpatory inference from a fingerprint on a movable object, it was required to negate reasonable innocent explanations through the evidence as a whole. In the absence of evidence demonstrating that the fingerprint could only have been deposited in circumstances connected to the offence, guilt could not be said to be the only reasonable inference available.

[2] The allegations relate to a break and enter that occurred at a residential homein Penticton, British Columbia (the “Residence”) during the early morning of January 17, 2023. The Crown alleges that the accused broke into the Residence by breaking the glass of the back patio door. Once inside, the Crown alleges that the accused took items from the house including a cell phone, a box of chocolates, a gift bag and a Christmas card (the “Christmas Card”).

[3] The police were called to investigate. They found the box of chocolates, the gift bag and the Christmas Card discarded on the property. The police had the items forensically examined and found two fingerprints on the Christmas Card that they subsequently matched to the accused’s fingerprints. These fingerprints are the only evidence that connects the accused to the crime.

[4] ….It is not contested that the accused was not known to the people living in the Residence and that he did not have permission at any time to be inside the Residence or on the property.

[5] The sole issue in this case is whether the Crown has proven, beyond a reasonable doubt, the identity of the accused as the person who committed the break and enter. The case is based on circumstantial evidence. Accordingly, the Crown must satisfy the Court that there is no other inference available, viewed logically and in light of human experience, capable of supporting an inference other than that the accused is guilty: R. v. Duong, 2019 BCCA 299, at para. 64. In other words, I must decide if there is a reasonable inference available, other than guilt, which explains why the accused’s fingerprints were on the Christmas Card. If there is, I must acquit the accused.

[16] The accused did not testify at the trial.

[17] Before concluding this brief recitation of the facts, I want to acknowledge that I accept from the testimony of Ms. K. and Mr. D., that the break and enter was a terrifying experience for Ms. K. It has changed her feelings of security and safety in her own home and it has impacted her negatively in several significant ways. However, the impact on the victims must not have any bearing on my determination of the accused’s guilt.

B. Circumstantial Evidence

[23] The parties accept that the leading authority regarding circumstantial evidence is R. v.Villaroman, 2016 SCC 33. In Duong, our Court of Appeal summarized the Villaroman principles for circumstantial evidence. Where a case is based entirely on circumstantial evidence, the ultimate question is “whether, on the whole of the evidence, the Crown has proven that the accused’s guilt is the only reasonable inference”: Duong at para. 64, citing R. v. Tahirsylaj, 2015 BCCA 7 at paras. 29, 38.

[24] Reasonable inferences may arise from a lack of evidence. Any inferences arising from an evidentiary gap must be reasonable considering the evidence and absence of evidence, when assessed logically in light of human experience and common sense: Duong at para. 61, citing Villaroman at para. 35. Evidence must be assessed as a whole, rather than piecemeal, in considering the inferences drawn from circumstantial evidence: Duong at para. 64.

[25] The Crown must negate any reasonable inferences which are not consistent with guilt, but does not need to negate every possibility, “no matter how irrational or fanciful”. The issue is whether the circumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Duong at para. 62, citing Villaroman at paras. 37, 38. The trier of fact is “to assess whether alternative inferences are merely possible, or whether they are reasonable”, and “to draw the line that separates reasonable doubt from speculation”: Duong at para. 65, citing Villaroman at para. 71.

IV. Discussion

[27] There is no dispute that a break and enter occurred. I am satisfied that the Christmas Card was inside the house prior to the break and enter and found shortly after by the police on the premises of the Residence. In this regard, I am satisfied that whoever broke into the Residence discarded the Christmas Card on the ground when they left. I do not accept it is a reasonable inference that the accused could have come into contact with the Christmas Card between the time it was removed from the Residence and discovered by the police.

[28] As referenced above, I accept that Cpl. Kraft and Sgt. Davidson are experts in their field. I am satisfied that the forensic analysis they conducted of the fingerprints deposited on the Christmas Card were matched to the accused’s fingerprints recorded on the C-216 form. The comparison match by Cpl. Kraft was verified by Sgt. Davidson using the ACE-V method of analysis. I am satisfied that the process of comparison and verification using the ACE-V is a tested and rigorous methodology for forensic analysis and that they are the accused’s fingerprints on the Christmas Card: R. v. F.Y.B., 2025 BCSC 1644 at para. 41.

[29] I found both Cpl. Kraft and Sgt. Davidson were unbiased and straightforward witnesses and their evidence was helpful to the Court. During cross-examination both Cpl. Kraft and Sgt. Davidson accepted the limitations of fingerprint evidence including:

a) There is no ability to determine the age of a fingerprint. In other words, there is generally no way to determine when a fingerprint was deposited on an item;

b) A fingerprint can remain on an item for years after it was deposited;

c) An individual can handle an item and not deposit fingerprints; and

d) A person’s fingerprint on an item does not mean they were the last person to handle the item.

[32] I acknowledge that the police are free to investigate crime as they see fit and as resources allow. However, in circumstantial cases, if there is only one piece of evidence pointing towards an accused, it can greatly weaken the Crown’s case. In the case at bar, the sole piece of circumstantial evidence is the Christmas Card containing a deposit of the accused’s fingerprints.

[33] No evidence was put before the Court regarding the origins or history of the Christmas Card before it was given to the victims on or around December 20, 2022, by their neighbours. No evidence was tendered as to where the card was purchased, when it was purchased, who purchased it and in what condition it was purchased. For example, there is no evidence whether it was purchased from a rack of cards open to the public to physically handle in order to review the card, in an individually sealed plastic wrapping, as part of a box of greeting cards or whether it was a homemade card. Indeed, the physical Christmas Card itself was not put into evidence. The physical Christmas Card may have provided evidence of its origin.[Emphasis by PJM]

[34] I accept that in considering circumstantial evidence the Crown does not need to negate every possible alternative to guilt no matter how fanciful, speculative or irrational. However, in this case, I have no evidence before me regarding the origin or history of the Christmas Card. Using ordinary human experience and logic, I accept that greeting cards are often presented for sale at stores in a manner that not only allows, but encourages, the public to interact with the card to examine the message expressed on the inside of the card. In this regard, it is not a fanciful inference that a greeting card may come into contact with a member of the public before it is ultimately purchased: Duong at para. 65, citing Villaroman at para. 71.[Emphasis by PJM]

[35] While the Crown labels how the accused might have come into contact with the Christmas Card at a time before the break and enter as speculation, in my view, it only becomes speculative if one starts with a view that the accused is guilty. In other words, it shifts the burden to the accused to explain if he has come into contact with the Christmas Card before the card was given to Ms. K. and Mr. D. There is never any burden on an accused to testify or provide evidence. The heavy burden to prove the guilt of the accused beyond a reasonable doubt always rests with the Crown to establish that the only inference available for circumstantial evidence is guilt.[Emphasis by PJM]

[36] As the Supreme Court cautioned in Villaroman:

[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[45] As referenced above, our Court of Appeal since Gauthier in R. v. Defaveri, 2014 BCCA 370 at para. 10 and the Supreme Court in Villaroman have made clear that requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts. This is contrary to the rule that whether there exists a reasonable doubt must be assessed by considering all of the evidence and lack of evidence: Villaroman at paras. 35 and 36 citing Lifchus at para. 30.

[46] The Supreme Court held that the issue with circumstantial evidence is the range of reasonable inferences that can be drawn. If there are reasonable inferences other than guilt, the Crown’s burden is not met: Villaroman at para. 35.

[52] As held by the Supreme Court in Villaroman when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. The Crown may need to negative those reasonable possibilities: at para. 37. While the line between irrational and fanciful conjecture and reasonable possibility may blur, and the Crown need not negative conjecture, I conclude that it is a plausible theory or reasonable possibility that the accused came into contact with the Christmas Card at a time other than during the offence and the Crown has not provided any evidence to negative those inferences.

[54] I accept that fingerprint evidence can be highly inculpatory evidence. However, the probative value must be connected to the specific circumstances of the case. Fingerprint evidence that is connected or confirmed by other evidence of identity is highly probative. Fingerprint evidence on its own may be highly probative, but it depends on whether there was evidence that permits the finding as to when and how the fingerprint was placed by an accused. In the case at bar, the Crown has not provided evidence to negate the reasonable inference that the accused’s fingerprint could have been deposited on the Christmas Card at a time other than the break and enter.

[55] I conclude that the absence of that evidence regarding the origin and history of the Christmas Card should not be filled with an assumption to support the Crown’s theory that the accused only could have deposited his fingerprints on the Christmas Card during the offence. I conclude that, based on the evidence before me, other alternate inferences are reasonable, not just possible. As guided by our Court of Appeal in Duong, I have determined that without any confirmatory evidence that provides the Court with evidence that the accused deposited his fingerprints on the Christmas Card during the break and enter, I have a reasonable doubt as to whether the accused’s fingerprints could only have been deposited on the Christmas Card during the commission of the offence.

[57] The burden on the Crown is a heavy one. It is not sufficient for me to conclude that the accused probably committed the offence or likely committed the offence. Proof beyond a reasonable doubt is much closer to certainty. Human experience informs me that often greeting cards are displayed on racks at stores in a way to allow the public to examine them before purchase. In my view, there is a reasonable inference available that supports a conclusion other than guilt. In other words, on the whole of the evidence, the Crown has failed to prove that the accused’s guilt is the only reasonable inference: Duong at para. 64

[58] Given that conclusion, I must acquit Mr. Kirkey.

R v Esrabian, 2026 CanLII 53667 (ONSC)

[June 4, 2026] Faint Hope Clause [Parfett J.] 

AUTHOR’S NOTE: Following a conviction for first-degree murder, an offender who remains eligible under the former “faint hope” provisions may apply under ss. 745.6 and 745.63 of the Criminal Code for a reduction in the period of parole ineligibility. The application proceeds in stages, beginning with a screening process before a superior court judge.

The judge’s role is not to determine whether the offender should be released on parole. Nor is the judge tasked with deciding whether the period of parole ineligibility ought to be reduced. Rather, the question is whether the applicant has a realistic prospect of success before a jury considering the application.

In making that assessment, the court examines a range of factors prescribed by the legislation, including the applicant’s character, conduct while serving the sentence, the nature and circumstances of the offence, and information relating to the impact of the crime on the victim and the victim’s family. The inquiry is forward-looking and focuses on whether a properly instructed jury could reasonably conclude that the period of parole ineligibility should be shortened.

This decision provides a careful explanation of that framework and the significant legislative changes that have made relief more difficult to obtain than it was under the earlier version of the regime. In particular, it explains how the post-2011 provisions altered the threshold inquiry and narrowed the pathway to jury consideration.

As a result, the decision serves as a useful guide to the modern application of the faint hope provisions, clarifying both the governing legal test and the factors that bear upon whether an applicant has a realistic prospect of obtaining a favourable jury determination.

[1] On June 21, 2008, the Applicant was convicted by a jury of first-degree murder in relation to the shooting of Hussein El-Hajj Hassan, which occurred on August 20, 2004.

[4] On December 18, 2013, the appeal was dismissed and on November 20, 2014, the Applicant’s application for leave to appeal to the Supreme Court from the judgment of the Court of Appeal was dismissed.

[8] At trial, there was conflicting evidence as to who fired the fatal shots. One of the three accused (Mark Yegin) testified at both the preliminary inquiries of the Applicant and Mr. Saleh (third accused). He gave different accounts of the shooting on both occasions.

[9] The Applicant testified at trial that he drove himself and Mr. Saleh to the meeting. He stated that he had anticipated that they would assault the victim. His testimony alleged that it was in fact Mr. Yegin who shot the victim. He explained that all three parties then placed the body in the grave, covered it with soil, and fled the scene. The three men then returned to Mr. Saleh’s home. They showered, changed, and disposed of their soiled clothes.

[10] The Crown theory was that, regardless of which co-accused was the shooter, the Applicant participated in the planned execution of the victim. The jury returned with a finding of guilt on the charge of first-degree murder.

[11] The Applicant later acknowledged his involvement in the killing, including the fact that the grave was dug in advance of the killing and that he attempted to establish an alibi following the killing.

[13] In 2008 and 2010, the Applicant was also convicted of contempt of court for refusing to name one of his suppliers and refusing to testify in the trial of one of the accomplices.

[14] Pursuant to s. 745(6)(2) and s. 745.63 of the Code, the screening judge is to consider the following:

(a) the character of Mr. Esrabian

(b) his conduct while serving the sentence;

(c) the nature of the offence for which Mr. Esrabian was convicted;

(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and,

(e) any other matters that the screening judge considers relevant in the circumstances.[Emphasis by PJM]

[15] A threshold issue that needs to be determined in advance of engaging the above analysis is the test to be applied. Without going into the entire history of the faint hope clause, it is sufficient to note that there are two possible tests to be applied. The first test is whether, on a balance of probabilities, there is a reasonable prospect of success at the second stage. This test was established in 1996. Second is whether, on a balance of probabilities, there is a substantial likelihood of success. This test was established in 2011.[Emphasis by PJM]

[16] As noted in R. v. Spence,

The question of the possible implications of the retroactive application of the screening test came before the Court of Appeal in R. v. Dell, 2018 ONCA 674. Doherty JA ruled that the retrospective application of the 2011 screening standard violated the applicant’s rights under section 11(i) of the Charter and could not be saved under section 1 of the Charter. As such, in that case the accused was entitled to the benefit of the law as it existed at the time of her offence.

[18] In the present case, the test to be applied is therefore whether, on a balance of probabilities, there is a reasonable prospect of success at the second stage of the proceedings.

[19] The principles to be applied in assessing the various factors set out in s. 745.63(1) have been discussed in several cases and can be distilled as follows:

 All the factors set out in section 745.63(1)(a) to (e) inclusive must be considered. There is “no scorecard” that gives each factor equal weight. Each application is a fact-specific determination;

 Once all the evidence has been examined the screening judge performs a limited weighing of the evidence in an attempt to forecast the outcome of the application if it was heard by a jury. The primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify a less harsh penalty” The jury’s verdict, in effect, is an assessment of the offender’s progress;

 To reduce the period of ineligibility, the Applicant must satisfy all twelve jurors. Accordingly, the test at the judicial screening stage is whether on the material filed the applicant satisfies the judge on the balance of probabilities that there is (in this case) a reasonable prospect that the jury would unanimously reduce the ineligibility;

 The mandated sentence for first-degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his current situation justifies a departure from the normal legislated sentence;

 The applicant is no longer presumed innocent. He must provide all the available evidence that would support his application at the time of the threshold screening; and

 The applicant must show that the application has real merit and, in this case, a reasonable prospect that a jury will unanimously reduce the period of ineligibility.[Emphasis by PJM]

Character of Mr. Esrabian

[22] The Applicant dropped out of high school after failing his third year, when he was around fifteen years old. As he was expected to take over the family business, the Applicant’s parents agreed that if he did not return to school, he would work full-time at the family store.

[25] When the Applicant was around 19 years old, he stopped working for the family business and opened his own restaurant, largely funded from proceeds from his illegal dealings. Initially, his earnings from illegal activity were solely destined to his own business, an Italian restaurant. Over time, the Applicant developed a network of individuals involved in organized crime and moved up the ranks.

[26] According to the materials filed, the Applicant has come to realize through counselling and reflection, that his ascension into the criminal field was fueled by financial insecurity and a materialistic desire to always have more. The materials state that the Applicant no longer holds this mindset. Rather, he attaches importance to values such as family and humility.

28] Presently, the Applicant is the father of a two-year old boy. Another child is expected to be born in August 2026. The Applicant stated that he benefits from the support of a social circle that encompasses his wife, sister and mother. He also has many friends and extended family who have and continue to offer him support throughout this process.

Conduct During Incarceration

[30] The Applicant has the following criminal record:

 2006 – Operation while impaired – $900 fine and 1 year driving prohibition;

 2008 – First degree murder – life imprisonment;

 2008 – Contempt of court – 2 years, concurrent; and

 2010 – Contempt of court – 4 years, concurrent.

[31] The Applicant has served his time in several institutions and is presently in the minimumsecurity wing of the Archambault Institution. While in pre-trial detention, the Applicant received three disciplinary reports. Following his sentence, the Applicant received four disciplinary reports. There have been no disciplinary reports since 2016.

[32] Since September 2022, the Applicant has participated in the following activities:

 Spokesperson to a Commissioner visiting the Institution to explain the procedures in the Minimum-security facility and the changes in his life since his incarceration

 Spokesperson at a high school event where he shared his story in hopes to deter students from making similar life choices to his;

 Participating in a program designing books to be read in an audio format for children of persons detained;

 Co-writing a book with an established author to raise awareness about how young men can become involved in criminal activity.

[34] The Applicant participated in an evaluation of his psychological risk. This report was completed in March 2025. The report was written in French.

[36] The report indicates that Mr. Esrabian’s risk assessment is as follows:

….La combinaison des outils suggère que monsieur Esrabian présente un risque de récidive violente faible.

[37] The report concludes by indicating that,

Bien que les premières années de la sentence du sujet ne se soient pas déroulées sans heurts, monsieur Esrabian semble se trouver sur la bonne voie, cherchant à se positionner autrement vis-à-vis de son existence et ceci en lien aux prises de conscience qu’il a faites au sujet des écueils de son mode de vie antérieur. Il apparaît d’ailleurs plausible que l’agrandissement imminent de sa famille contribue à alimenter la poursuite de ce processus….

[38] The Applicant received a very positive decision from the Parole Board of Canada that states that he has made some significant personal changes….

[39] The Applicant has established a release plan that involves continued visits with his wife, sister and brother-in-law. It also includes continued outings to attend AA and NA meetings, to go to church and assist at the La Montagne d’Espoir food bank.

Nature of the offence for which the Applicant was convicted

[41] The Applicant notes that his specific involvement is nonetheless a factor to be considered. He accepts that he was a party to the murder and explains his involvement as acting out of loyalty to one of the co-accused, per industry rules.

Conclusion

[43] Mr. Esrabian’s time in custody has not been without some hiccups along the way. At the outset of his time in jail, he had several disciplinary reports, although I note that overall, they were not that serious. He has not had any reports since 2016.

[45] The Applicant has expressed remorse for the impact that his actions had on the victim’s family and that remorse is felt by the psychologist to be sincere. In 2023, he participated in a restorative justice program, and it was noted that Mr. Esrabian expressed sincere remorse for his actions.

[46] Mr. Esrabian has been permitted to go on many outings, all of which have occurred without incident. More specifically, he has attended AA and NA meetings and has worked three times a week at a food bank.

[47] The question for this court to determine at this stage is whether, 

[T]here is a viable hope that the applicant is a changed person, able to move forward with his rehabilitative efforts while posing no real risk to the safety of the public. Is it open to a jury to conclude that, despite the horrific nature of the crime, there is a realistic prospect that the applicant can become a contributing member of the community? Is it open to a jury to find that the applicant is deserving of an opportunity to seek release now, rather than waiting for the expiration of 25 years?[Emphasis by PJM]

[48] In the present case, the answer is ‘yes’. Mr. Esrabian has demonstrated that he has changed and that there is a reasonable prospect that a jury will find that he can become a contributing member of the community and is deserving of a chance to demonstrate that sooner rather than later.[Emphasis by PJM]

[49] An order will be made that a jury be empaneled to hear this Application to reduce the number of years remaining until parole eligibility is available. Additionally, there will be an order that a Parole Eligibility Report be prepared by Correctional Services of Canada.