Stuart O'Connell Criminal Law Blog

A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution. See R. v. Ellis , 2013 ONCA 9 (CanLII), at para 49. An adverse inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable . See R. v. Ellis , 2013 ONCA 9 (CanLII), at para. 48. The only adverse inference that the trier of fact may draw is that if the witness were called his/her testimony would be unfavourable, eg., would bear adversely on the credibility of the accused. An inference of guilt is not permissible.    R. v. Koffman (1985), 20 C.C.C. (3d) 232 , 10 O.A.C. 29 , per Martin JA. Comment on the Failure to Produce a Witness It is rarely permissible for the trial judge to comment on the failure to call a witness. Even where a comment on the failure to call a witn...

A trial judge may sketch out draft reasons either in advance of hearing counsel’s submissions or as those submissions are being offered, so long as the trial judge remains receptive to persuasion by counsel’s submissions. R. v. Chue [2011] O.J. No.  4149 (S.C.J.) , per Nordheimer J;  R. v. Purewal , 2014 ONSC 2198 . Given the acute time pressures on trial judges, resort to this practice may often be necessary. No harm is created by the practice, and some practical benefit may be gained for the process as a whole, so long as it is done with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner. R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J;  See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J. Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance. [FN] Some measure of time should be t...