R. v. Roulette (K.T.), 2015 MBCA 9
[88] As a general rule, the failure of a party to call a witness at trial does not support an adverse inference and, as such, it is improper for counsel to invite the jury to do so. Nor, generally, should the judge do so.
[89] This was made clear in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, where, after referring to other cases which caution against so commenting to a jury, Binnie J. wrote (at para. 39):
It is clear from these authorities that it will rarely be “appropriate” for the trial judge to comment on the failure of the Crown to call a particular witness, and even more rare to do so with respect to the defence. As Brooke J.A. went on to say in Zehr [(1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. Sup. Ct.)], at pp. 68-69:
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 [to the jury].
….
There are exceptions to the general rule, but none apply in this case.
[90] Moreover, in this case, defence counsel raised the adverse inference issue at the pre-charge conference, but acknowledged that the jurisprudence did not support the drawing of an adverse inference.
[91] Nevertheless, in his closing submission, he encouraged the jury to do so.
[92] Following counsel’s submissions to the jury, a post-submissions meeting was held and the judge advised that a correcting instruction would be necessary and given in his jury charge. He then did so, as follows:
I do, however, wish to make some comments about some of the matters which were made during the course of yesterday’s submissions.
During his submission, [defence counsel] made mention of the fact that Black John or Steve or [Sorenson], the individuals, according to Mr. Glow and/or Ms. Saari, who had involvement in the sale of the TV, were not called as witnesses, perhaps inviting you to infer that they would not have supported the evidence of Mr. Glow and Ms. Saari about a TV in their home. You cannot make such an inference. Who knows what these people would have said? They may have supported Mr. Glow or they may have not supported Mr. Glow. To infer anything about what they may have said would be speculation. Remember that I told you that although you may wish the evidence was more complete in certain areas, you will have to reach verdicts on the evidence as it stands. You should not speculate about what others may have said if they had been called as witnesses.
The same applies to Mr. Huber. [Defence counsel] noted that he was not called. Again, you can make no inference unfavourable to the Crown based upon Mr. Huber’s absence. By so doing, you are speculating that Mr. Huber would not support Mr. Asham and you cannot speculate.
[Defence counsel] also made mention that there might have been a number of people that evening who saw [the accused] and no one came to give evidence to say that [the accused] was wearing a jacket that was found in the dumpster. The absence of such people again does not allow you to infer that [the accused] was or was not wearing that jacket. You must draw any inference from the evidence. It is up to you whether you conclude that the DNA evidence regarding that jacket, coupled with other evidence that you heard, is enough to convince you that [the accused] was wearing that jacket on that occasion or not. But you cannot use the fact that no evidence was called from people who actually saw [the accused] wearing that particular jacket to come to your conclusion on that issue.
A similar point can be made about [defence counsel’s] reference to the lack of wiretaps and blood spatter evidence. You cannot draw any inferences against the Crown from the lack of such evidence because you again would be speculating what that evidence would be. In addition, you cannot presume that such evidence or indeed other investigative techniques would have been reliable or even appropriate in the first place. No evidence was led as to what proper investigation practice is and you should not assume that you know what it is and what it is not and what such a technique, even if it’s available, would have yielded. You must make your decision on the evidence given to you in this case.
Finally, one further matter. [defence counsel] mentioned the possibility that Ms. Merrick might have come back to her apartment at some point after the murders and obtained information at the crime scene which she could have imparted to others. You cannot draw that inference. Unlike the absence of witnesses about which I have just talked, Ms. Merrick was a witness. The suggestion that she might have come back after the fact and learned about the details of the crime is not something you can consider since she was not given the opportunity to comment upon it while she was on the witness stand. Not only would an answer to that question be speculation, she was here and no one felt it important enough to ask her about it. That suggestion should not be considered by you.
Remember, you must decide only on the evidence before you. You can draw inferences but only from the evidence before you. ….
[93] Further, there is no basis to suggest that in so commenting the judge created any inference that the accused should have called the witnesses in question. Nor did the judge shift the onus of proof from the Crown to the accused. Almost immediately after giving the correcting instruction, the judge charged the jury as follows:
Let me say a few words about the burden of proof. [The accused] does not have to present evidence or prove anything in this case, and in particular he does not have to prove that he is innocent of the crimes charged.
From start to finish, it is Crown counsel who must prove [the accused] guilty beyond a reasonable doubt. It is Crown counsel who must prove [the accused’s] guilt beyond a reasonable doubt, not [the accused] who must prove his innocence. You must find [the accused] not guilty of an offence unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty of it.
[94] The judge committed no error in respect of his instruction regarding adverse inferences or burden of proof.
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