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[29] In some limited circumstances, a trier of fact may draw an adverse inference from the accused’s failure to call a witness. The adverse inference principle is “derived from ordinary logic and experience”. It is not intended to punish the accused for failing to call a witness: R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751, at para. 24.
[30] An adverse inference may only be drawn where there is no plausible reason for not calling the witness: R. v. Lapensee, 2009 ONCA 646 (CanLII), 99 O.R. (3d) 501, at para. 42. Even where it is appropriate to draw an adverse inference, it should not be “given undue prominence and a comment should only be made where the witness is of some importance in the case”: R. v. Koffman (1985), 1985 CanLII 3640 (ON CA), 20 C.C.C. (3d) 232 (Ont. C.A.), at p. 237.
[31] Commenting upon the failure of the defence to call a witness runs the clear risk of reversing the burden of proof: R. v. Ellis,2013 ONCA 9 (CanLII), 113 O.R. (3d) 641, at para. 49; and Lapensee, at para. 45. As well, trial counsel will frequently make choices about not calling potential witnesses, the reasons for which are often entirely unrelated to the truth of any evidence a witness may give. For instance, an honest person may have a poor demeanour, resulting in a strategic choice not to have the individual testify. Or, the evidentiary point to be made by a person may already have been adequately covered by others: Jolivet,at para. 28. Allowing an adverse inference to be taken from the failure to call a potential witness runs the risk of visiting strategic litigation choices upon the accused. Accordingly, an adverse inference should only be drawn with great caution: R. v. Zehr (1980),1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68; R. v. Charrette (1982), 1982 CanLII 3738 (ON CA), 67 C.C.C. (2d) 357 (Ont. C.A.), at p. 359; Koffman, at p. 237; Lapensee, at para. 45; and Ellis, at para. 49.
[32] Where comment is appropriate, the “only inference that can be drawn” is not one of guilt, but an inference that, had the witness testified, his or her evidence would have been unfavourable to the accused: Koffman, at p. 238; and R. v. Marshall (2005),2005 CanLII 30051 (ON CA), 200 C.C.C. (3d) 179 (Ont. C.A.), at para. 47. This inference can impact on an assessment of the accused’s credibility: Koffman, at p. 238; Charrette, at p. 359; R. v. Dupuis (1995), 1995 CanLII 1543 (ON CA), 98 C.C.C. (3d) 496 (Ont. C.A.), at p. 508; and Marshall, at paras. 44, 47-48.
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