Although the Crown is not obligated to call certain witnesses at trial, the inferences drawn (both intentionally or unintentionally, depending on the direction of the judge to the jurors) from the Crown’s failure to do so can, arguably, influence the outcome of the trial in these instances.
Trakas,  O.J. No. 200 (CA):
29 There was no question that David Rose was the only eyewitness to the impact, that David Rose’s evidence placed the police officer on the road at the time of the impact, that the prosecution disclosed David Rose’s evidence to the accused and that the Crown did not provide its experts with David Rose’s evidence for the purpose of their initial expert reports. It is also not in dispute that, while the Crown called David Rose as a witness at the preliminary inquiry, that it did not call him as a witness at trial. The defence did.
30 In my view, just as the defence would be entitled to comment on the absence of evidence on a particular issue, such as an absence of evidence regarding motive or opportunity, so too the defence in this case was entitled to comment on the decision of the Crown not to call David Rose and to ask the jury to consider why the Crown did not call the only eyewitness to the impact or provide the experts about his evidence when they were asked to formulate their opinions. This does not mean that the Crown was obliged to call David Rose as a witness. Of course, it was not. This was recognized by all counsel and by the trial judge. See R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.) Further, this was not a case where defence counsel asked the jury to draw an adverse inference from the failure to call the witness because, in this case, the witness had testified, albeit for the defence. However, the defence did suggest that the strategy of ignoring David Rose’s evidence highlighted the prosecution’s tunnel vision and undermined the reliability of other evidence presented by the Crown.
31 Different considerations apply to the different roles of those involved in the process: to the exercise of discretion by Crown counsel whether or not to call a particular witness; to an appeal court considering whether the Crown’s failure to call an important witness should result in a new trial; to a trial judge obliged to instruct the jury on the law regarding whether any inference can be drawn from the failure to call a witness, and to a defence counsel commenting on a Crown failure to call a witness. In my view, each situation must be considered in context, and the defence in this case was at liberty to comment on the weaknesses of the Crown’s case, including its strategy in not calling David Rose, and in not giving David Rose’s evidence to the expert witnesses. Similarly, the Crown was entitled in its closing to point out that David Rose’s evidence was available to the defence and was eventually given to the experts, just as the trial judge was entitled to tell the jury that the Crown is not obliged to call a particular witness.
32 However, while the defence was entitled to comment on the Crown’s tactics on these issues, it was not entitled to suggest that the Crown attorneys personally showed a lack of integrity in arriving at that strategy. This is so for a number of reasons, most importantly because the trial was not about the personal integrity of the Crown attorneys, who would not be in a position in any event to respond to such allegations. To the contrary, the jury’s mandate was to decide whether the Crown had established its case against the respondent and not to weigh and compare the integrity of the Crown and the defence. If the defence wanted to challenge the Crown’s integrity, it could have sought an abuse of process ruling. It did not. See Cook, para. 58. Accordingly, the question is whether the defence attacks on the “prosecution” in this case amounted to an attack on the Crown’s strategy and tactics or whether they amounted to an attack on the personal integrity of the Crown attorneys. The former is permissible; the latter is not.
See Michel,  N.W.T.J. No. 28 (CA): …The judge also erred in instructing the jury not to draw any inferences from the Crown’s decision not to call the evasive witnesses. The jury could have found the absence of the witnesses to raise a reasonable doubt as to the circumstances of the alleged rape.
See also discussion in J.B.,  O.J. No. 2417 (OCJ, Sparrow J):
(d) Failure of Crown to call witnesses
20 Defence counsel also argues strenuously that the failure of the Crown to call A. and S., the friends of the complainant who were at the beer party in the park, allows a negative inference to be drawn on the issue of identification. In other words, I should assume that if the girls had been able to identify the accused as one of the boys in the park, and if A. had been able to identify him as one of the participants in the trip to the beer store, they would have been called by the Crown.
21 For this proposition he relies primarily on the case of R. v. Sophonow, 25 C.C.C. (3d) 415, a decision of the Manitoba Court of Appeal, in which the court summarized the identification evidence of a key witness and stated at p. 444:
– “Instead, the learned trial judge summarized Mr. Doerksen’s evidence as though it was unchallenged. In fact, its veracity was challenged by the silence of those who might have corroborated it”.
He also relies on R. v. Charrette 67 C.C.C. (2d) 357, (Ont. C.A) a case in which the defence failed to call a witness who could have corroborated the testimony of the accused that a Crown witness asked him to provide her with money to “do good in court”. The potential witness, one Lorimer was present during the conversation, on the advice of the accused’s counsel, and the court stated at p. 359:
– “The defence did not call Lorimer as a witness to corroborate the evidence of the appellant and gave no reason for not calling her. In those circumstances the trial judge was entitled to draw an inference adverse to the credibility of the accused with respect to this matter”.
22 In the same paragraph, however, the court cites R. v. Zehr (1980), 54 C.C.C. (2d) 65.(Ont. C.A.) for the widely accepted proposition that:
– “a trial judge should draw an adverse inference in a criminal case from the failure of one of the parties to call a witness only with the greatest of caution”.
23 In Zehr, the accused failed to call all witnesses who may have been able to testify that the accused was elsewhere at the time of a rape, and the trial judge stated that the jury could consider the failure of the defence to call them. The Ontario Court of Appeal disapproved of the instruction in the following passage:
– I think the trial Judge erred in making this comment and giving this instruction to the jury in this case. While permissible in some cases, comment on the failure to call a witness should only be used with great caution. This kind of comment from a trial Judge can seriously affect what might otherwise be the jury’s assessment of the credibility of those who do testify and perhaps more importantly the integrity of the case. There are many reasons why counsel may choose not to call a witness, and our Courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would not justify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system, counsel is not called upon, or indeed permitted, to explain his conduct of a case.
24 Relying on Zehr the Crown contends, in comments not opposed on the record, that the evidence of both girls was made known to defence counsel, who could have subpeonaed them; counsel himself acknowledges having them interviewed by an articling student. Given such cooperation by the Crown, and given the testimony of P.C. McKinney that A. and S. were uncooperative and that one was counselled on obstructing justice, she argues vehemently that this is not a case in which an adverse inference can be drawn against the Crown. She quotes the following passage from Zehr at p. 70, regarding the dangers in drawing inferences when the uncalled witness is equally available to both sides:
25 ”In R. v. Wheeler like Bryant and Dickson, a witness, whose identity was known and whose evidence was known by both sides, was not called by either of them. The appellant had been convicted of manslaughter. His defence had been that he acted in the defence of his common law wife when the deceased had attempted to rape her, and so the killing was not an unlawful killing. The Crown notified the defence that they were not going to call the woman and that the defence was free to interview her. In his charge to the jury the trial Judge said that the defence was perfectly entitled to call her or not as they chose, but that their failure to call her “is a matter that you are fully entitled to take into account”. Lord Justice Winn speaking for the Court said at pp. 830-1:
– The court think that that was unfortunate and unhelpful, and that any repetition of such a reference in a case where a witness is not called by either side is undesirable. All that really should have been said was:
– “neither side has called this witness. There is no reason why the defence should feel hardly treated over this, since they have had a month or more in which they could interview her, but I am making no further comment and it is really not for you to speculate what inference if any should be drawn from the fact that neither side has called this witness, and I would strongly recommend you to refrain from making any such speculation because it is a very dangerous thing to do”.
26 Wigmore On Evidence (Chadbourn rev. 1972), vol. 2, paragraph 288, is cited in R v. Rooke, 40 C.C.C. (3d) 484 at p. 513, a decision of the British Columbia Court of Appeal, for a similar proposition:
– Failure to produce evidence (continued): (c) Witnesses equally available to both parties. (c) It is commonly said that no inference is allowable where the person in question is equally available to both parties; particularly where he is actually in court; though there seems to be no disposition to accept such a limitation absolutely or to enforce it strictly. Yet the more logical view is that the failure to produce is open to an inference against both parties, the particular strength for the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.
27 In my view, the Sophonow case, supra, relied upon by defence can be distinguished in that the witnesses not called were just outside, or nearby a donut shop where a murder took place, and an alleged assailant seen; in other words, they may have seen the perpetrator at or fleeing the scene. Likewise, in Charette supra, the witness was present when the impugned statement was made, strictly for the purpose of hearing it. In other words, in those cases the absent identification witnesses may have seen the accused at or near the time of commission of the act, or making of the statement; in this case A. and S. were not in the car or nearby at the time of the alleged sexual assaults, but were merely part of a large group including the accused earlier in the afternoon. Furthermore, their testimony was clearly available to defence. In all these circumstances, I find that this is not one of the exceptional cases in which an inference should be drawn from the failure of the Crown to call potential identification witnesses.
More on the topic (and the additional cases cited therein, e.g. Cook and Jolivet from the SCC) :
 Munro,  O.J. No. 512 (C.A.):
| Issue 3: |
Comment on Dobson’s Absence at Trial | |
54 During pre-charge discussions, defence counsel asked that the jury be instructed that an adverse inference could be drawn from Dobson’s failure to testify. The trial judge refused, saying:
– In my view, on the facts of this case, that is unreasonable and I’m not going to exercise my discretion. There has been an explanation, the whole lifestyle of these people is such that there are many reasons why she may not be here and I’m not going to make any comment on that. I am ordering counsel not to make a comment on it with respect to the negative inference. The Crown is in a position to call whatever witnesses it can and they must prove their case beyond a reasonable doubt.
 Dalton,  O.J. No. 4670 (OCJ, Tackash J):
106 The Crown argued that an adverse inference ought to be drawn from the failure of the accused to call witnesses other than Ms. Barrett to testify as to the amount that she had to drink and as to the state of her sobriety when she left the golf club.
107 This issue was considered in the context of evidence to the contrary in a drinking/ driving case in R. v. Hagood,  O.J. No. 4188 where Durno J. stated at paras. 15-18:
–  There is no obligation on either the prosecution or defence to call a witness: R. v. Antley (1964), 42 C.R. 384 (Ont. C.A.). While the appellant’s argument that it is improper to draw an adverse inference in the absence of the issue being raised in questioning is attractive, in appropriate cases an adverse inference can be drawn.
–  For example, in R. v. Charrette (1982), 67 C.C.C. (2d) 357 (Ont. C.A.), the appellant had arranged for an independent person to attend a meeting arranged at the initiation of a Crown witness. The appellant testified the witness told him that, for some money, she would “do good in the Court”. The witness testified it was the appellant who approached her and offered her money to corroborate his evidence. The “independent” witness was not called, and the defence offered no explanation why she was not called. The Court of Appeal held that, in those circumstances, the trial judge was entitled to draw an inference adverse to the credibility of the appellant.
–  In R. v. Kakarelis,  O.J. No. 242 (Gen. Div.), Hill J. found it was inappropriate on the facts of that case to draw an adverse inference from the failure to call persons from several drinking establishments where the accused had been drinking. In R. v. Solomon,  O.J. No. 5128 (S.C.J.), Hill J. provides an informative summary of the law regarding adverse inferences from the failure to call witnesses, and concludes in that case that the trial judge could have used the failure to produce corroborative evidence in assessing his credibility on the issue of “evidence to the contrary”, but had erred in improperly using the failure to produce evidence as after-the-fact conduct.
–  Where the person who was drinking with the appellant was his son and no explanation was offered for his non-attendance, I am not persuaded the trial judge erred in drawing an adverse inference. The Reasons do not include the prohibited reasoning identified by Hill J. in Solomon, supra.
108 In R. v. Solomon, referred to in R. v. Hagood, supra, Hill J. stated at paragraphs 34-35:
–  The evidentiary presumption in s. 258(1)(c) of the Criminal Code, that the blood/alcohol content of the accused is the same at the time of the alleged offence as the content established by a subsequent intoxilyzer test (the presumed fact), is a rebuttable presumption. The process of rebuttal by evidence to the contrary is frequently described in terms of the accused merely being required to raise a reasonable doubt as to its existence: The Queen v. Proudlock (1978), 43 C.C.C. (2d) 321 (S.C.C.) at 325-6; The Queen v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.) at 330; R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 168-9; The Queen v. Crosthwait (1980), 52 C.C.C. (2d) 129 (S.C.C.) at 138; The Queen v. Moreau (1978), 42 C.C.C. (2d) 525 (S.C.C.) at 534; R. v. Gilbert (1994), 92 C.C.C. (3d) 266(Ont. C.A.) at 277, 280-1. It is generally accepted that evidence to the contrary, where accepted, is capable of raising a reasonable doubt where it emerges not only from the accused but also from evidence adduced by the Crown: The Queen v. Proudlock, supra, at 138; St. Pierre v. The Queen (1995), 96 C.C.C. (3d) 385(S.C.C.) at 398.
–  In the present case, the evidence to the contrary said to rebut the evidentiary shortcut asserted by the Crown arose from evidence adduced by the defence case. In effect, the appellant carried a persuasive burden to raise a reasonable doubt to defeat operation of the presumption to prove the presumed fact: see Wigmore, Evidence in Trials at Common Law, supra at ss. 2487-2491. As a general rule, the defence should have to call witnesses beneficial to its case: The Queen v. Cook,  1 S.C.R. 1113, supra at 495. As the s. 258(1)(c) presumption operates in the prosecution’s favour, the defence fails to adduce evidence to the contrary at its peril.
109 Further at paragraph 40 he concluded:
– In conclusion, while a trial court can, in appropriate cases, draw an adverse inference against the defence in an “evidence to the contrary” analysis, on account of failure to call a witness or to produce evidence, the record here does not support that any adverse inference could be, or indeed was, properly drawn by the trial court.
110 Accordingly, cases such as the one at bar are cases in which an adverse inference may be drawn from the failure to produce evidence or call witnesses. The issue remains however whether this is an appropriate case to do so. In my view, it is not.