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Abuse of Process - Adverse Inferences. Guiste v. Law Society of Ontario
In Guiste v. Law Society of Ontario (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against several professional misconduct findings where: "a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.[1] The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.[2] Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed."
Here the court considered 'adverse inferences', and whether they can only be asserted in abuse of process applications [see esp para 107]:[104] The appellant’s argument, as I understand it, is as follows. While it is generally open to a party to decide what witnesses to call, in some circumstances an adverse inference can be drawn against the Crown for failing to call a witness if the decision was made for an oblique motive. Ms. T.’s evidence of her conversation with Crown counsel supports the inference that the decision not to call her was made for an oblique motive, including an inference that the prosecution was racially motivated. The conversation was therefore relevant and admissible even if there was no abuse of process application.
[105] The first proposition, that in some circumstances an adverse inference can be drawn from the Crown’s failure to call a witness, is undoubtedly correct, although the circumstances in which such an inference would be appropriate are rare: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 25-28; R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 162; Cook, at para. 41. As explained in Jolivet, at para. 28, the adverse inference that can be drawn in such circumstances is that the failure to call the witness amounts “to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.” The inference, where it is available, is “rooted in the soil of ordinary logic and experience”: Ellis, at para. 48.
[106] Courts have long been cautious about drawing inferences of this nature because there may be many reasons why counsel, in exercising their judgment, choose not to call a particular witness and “our Courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case”: Zehr, at pp. 68-69; Jolivet, at para. 28. Furthermore, given the Crown’s disclosure obligations, defence counsel will be aware of the witness’s anticipated evidence and may call the witness if he or she concludes that the witness’s evidence will be helpful, thereby obviating the need for the adverse inference: Cook, at para. 36. This is, in fact, what occurred in this case.
[107] While I accept that in some circumstances an adverse inference can be drawn from the Crown’s failure to call a witness, there is no clear authority supporting the appellant’s submission that this means that evidence about Crown counsel’s decision-making is therefore relevant and admissible at trial absent an abuse of process application. Indeed, the judgment in Cook suggests otherwise (at para. 58):A second possibility is where the Crown intentionally abuses its discretion in some manner by failing to call the witness. While this has traditionally been referred to as being an “oblique motive”, it would seem to have much in common with the doctrine of abuse of process. Indeed, given that the finding of an “oblique motive” by its very name implies improper conduct on the part of the Crown, I feel it is unlikely that such a finding could arise without there being a legitimate claim of an abuse of process. See also Felderhof, at para. 49.
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