Failure to call witness -- negative inference for Crown

There is a principle, which really is more of a common sense guide, that the failure to call a witness can lead to a negative inference.

Such inference is well established in civil and family cases but is problematic in criminal cases.

The accused has no duty to call evidence and, except in the narrow sense of being required to make an issue live if the burden of going forward lies with the accused, any suggestion the accused failed to 'disprove guilt' is likely a reversible error.

That said, the Crown does have a duty to call evidence and the failure to call a witness relevant and within the Crown's ability to call may lead to a negative inference. See:

R v. Michel et al, 2007 NWTCA 3 (CanLII)
Date:   2007-04-27

Parallel citations:     [2007] 404 A.R. 327 • (2007), 221 C.C.C. (3d) 180

URL:    http://www.canlii.org/en/nt/ntca/doc/2007/2007nwtca3/2007nwtca3.html
James Morton
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