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Evidence - Circumstantial (3). R v Yizhak
In R v Yizhak (Ont CA, 2026) the Ontario Court of Appeal considers when a failure to adduce contrary evidence (though not by testifying) can "in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review". To me this comes very close to drawing a negative inference on exercising the right to silence, as the evidentiary circumstances involved were quite personal (ie. gun in bedroom of own apartment):[25] The appellant called no evidence. He provided no innocent explanation for the presence of a loaded, chambered handgun in his small, one-bedroom condominium. The absence of such an explanation in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review: R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570, at paras. 1-2; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.
[26] The objective evidence established his longstanding connection to and control over the unit. The firearm was readily accessible within that space.
[27] The trial judge considered and rejected the alternative theory advanced at trial.
[28] When the law governing circumstantial evidence is applied to the objective facts of this case, the conclusion that guilt was the only reasonable inference was well within the bounds of reasonableness.
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