Monday, March 4, 2013


Where a party to a proceeding fails without explanation to call an available witness or evidence that is of a material or corroborating nature, it is open to a judge alone or one directing a jury to comment on its relevance to the factfinding process. The drawing of an adverse inference is subject to certain limitations and qualifications expressed in the discretion of trial judges to comment being exercised with caution and subject to “the infinitely varying facts of different cases”: R. v. Gallagher, [1974] 3 All E.R. 118, referred to in R. v. Zehr, [1980] O.J. No. 1130 (Ont. C.A.), at p. 5.

An adverse inference is one that permits a trier of fact to weigh the significance of a party uniquely positioned to call material evidence failing to do so, leading to a strong inference that the evidence would have been unfavourable to that party, or to a weaker one of unhelpfulness: see J. Sopinka, S.N. Lederman and A.W. Bryant, in The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para 6.321, where the authors referred to this inference as “an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it”.

Binnie J. describes this inference in R. v. Jolivet, 2000 SCC 29, at para. 24, as “derived from ordinary logic and experience and…not intended to punish a party who exercises its right not to call the witness by imposing an “adverse inference” which a trial judge in possession of the explanation for the decision considers to be wholly unjustified.” Reasons for not calling witnesses may include trial strategy, that the point has been adequately covered by another witness, that an honest witness has a poor demeanour, medical inability of the witness to testify, or that the evidence would be comparatively unimportant to the case, merely cumulative or inferior to the evidence already available on the relevant point: R. v. Jolivet, at para 28; R. v. Lapensee, [2009] O.J. No. 3745(Ont. C.A.), at paras. 42-3.


Anonymous said...

I read this article fully about the resemblance of most recent and previous
technologies, it's amazing article.

Here is my web blog - diet that works

Anonymous said...

Hello there! This is my first visit to your blog! We
are a group of volunteers and starting a new project in
a community in the same niche. Your blog provided us beneficial information to work on.
You have done a extraordinary job!

Here is my blog post ... raspberry Ketones

Anonymous said...

I have been browsing online more than 3 hours today,
yet I never found any interesting article like yours. It is pretty worth enough for me.
In my view, if all site owners and bloggers made
good content as you did, the web will be much more useful than ever before.

Take a look at my blog post; Raspberry Ketone Plus Diet

Anonymous said...

I just like the valuable info you supply for your articles.
I'll bookmark your weblog and check once more right here regularly. I'm moderately
certain I'll be informed lots of new stuff right right here! Good luck for the following!

my homepage :: Pure Raspberry ketone

Anonymous said...

I'm gone to say to my little brother, that he should also visit this webpage on regular basis to take updated from most recent reports.

Feel free to visit my webpage - acai ultra reviews

Anonymous said...

When I originally commented I seem to have clicked on
the -Notify me when new comments are added- checkbox and from now on every time a comment is added
I get 4 emails with the exact same comment. Is there a way you can remove me from that service?

My homepage; Nuvocleanse

Anonymous said...

Hi, I think your blog might be having browser compatibility issues.

When I look at your blog in Opera, it looks fine but when
opening in Internet Explorer, it has some overlapping.
I just wanted to give you a quick heads up! Other then that, great

Also visit my web blog ... Raspberry Ketone Review

Anonymous said...

Heya i am for the primary time here. I found this board and I find It truly useful & it helped me out
a lot. I'm hoping to present one thing back and help others like you aided me.

My blog :: White Kidney Bean Extract

Anonymous said...

Ahaa, its pleasant discussion on the topic of this piece of
writing here at this weblog, I have read all
that, so at this time me also commenting here.

Look at my page :: raspberry ketones reviews :: ::

Anonymous said...

Hey I know this is off topic but I was wondering if you knew of any widgets I could add to my blog that automatically tweet
my newest twitter updates. I've been looking for a plug-in like this for quite some time and was hoping maybe you would have some experience with something like this. Please let me know if you run into anything. I truly enjoy reading your blog and I look forward to your new updates.

Here is my blog ... raspberry ketone extracct