ADVERSE INFERENCES FROM FAILURE TO CALL EVIDENCE

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.