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Evidence - Adverse Inference from Failure to Call Witness

R v D.E.

In this criminal case the court comments as follows on the argument that an adverse inference should be drawn from the failure to call a witness:
[16] Third, the appellant asserts that the trial judge erred by not addressing the Crown’s failure to call certain witnesses, especially witnesses who were allegedly present in the RV, trailer and hotel where some of the incidents occurred.

[17] We disagree. 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. Defence counsel present at the trial did not make such a request. And the defence could have called the relevant witnesses, especially in the context of a trial where the accused testified.
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