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Evidence - Failure to Adduce

. Jacobi v. Winners Merchants International LP

In Jacobi v. Winners Merchants International LP (Div Ct, 2022) the Divisional Court considers whether the police have a common law duty to 'create evidence':
[28] ... Police, and by analogy security personnel, are under no common law duty to create evidence, and are under no common law duty to activate recording equipment: R. v. Coombs, 2017 ABPC 34. No statutory or regulatory basis for such a duty on the part of private security personnel was established. The failure to activate recording equipment is a fact that may be taken into account by the trier of fact, but it does not constitute spoilation of evidence giving rise to a rebuttable presumption that the missing evidence would have been unfavourable to the spoilating party. It is simply one fact, in the matrix of facts, that may be considered by the trier of fact in concluding about what happened.
. Attallah v. College of Physicians and Surgeons of Ontario

In Attallah v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court, in an administrative appeal (professional discipline), held this on an adverse inference issue:
[47] After the close of the College’s case, the Appellant submitted that the College had failed to establish a prima facie case of disgraceful, dishonourable or unprofessional conduct. Accordingly, the Appellant elected not call a defence. That was, of course, his right, but his position that there was no case to meet was not binding on the College or the Committee.

[48] Now, the Appellant argues that an adverse inference is discretionary and can only be drawn after a prima facie case has been established by the College, which bears the burden of proof. He submits that the College failed to meet its burden of proving a prima facie case against him and that, as a result, no adverse inference may be drawn from the Appellant’s failure to testify.

[49] There is no merit to this argument. At the close of the College’s case there was ample evidence which, if left unanswered, could establish professional misconduct on a balance of probabilities. In these circumstances, it is well settled that an adverse inference may be drawn from the physician’s failure to testify without any implicit alteration of the burden of proof: Ontario (College of Physicians and Surgeons of Ontario) v Liberman, 2011 ONCPSD 13, pp. 85-87, aff’d 2013 ONSC 4066 at para 42; Ontario (College of Physicians and Surgeons of Ontario) v McIntyre, 2015 ONCPSD 25, at pp. 30-31, aff’d 2017 ONSC 116 (Div. Ct.), at paras. 34-35.
. Deyab v. Canada

In Deyab v. Canada (Fed CA, 2020) the Federal Court of Appeal considered the evidence law of adverse inferences in civil cases:
[46] In Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (LexisNexis Canada Inc., 2018) at §6.471 - §6.472, the situations in which an adverse inference can be drawn are set out:
§6.471 In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material 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.

§6.472 An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof.
. The Association of Professional Engineers of Ontario v. Rew

In The Association of Professional Engineers of Ontario v. Rew (Div Ct, 2020) the Divisional Court stated the test for drawing an adverse inference for failure to call evidence:
[92] The drawing of an adverse inference is discretionary. It requires three conditions to be met: the witness must be within the exclusive control of the party against whom the inference is sought to be drawn; there must be an adequate explanation for the failure to call the witness; and the witness must have key evidence. See: Parris v. Laidley, 2012 ONCA 755 at para. 2.
. Woods v. Jackiewicz

In Woods v. Jackiewicz (Ont CA, 2020) the Court of Appeal remarks candidly on the 'failure to adduce' evidence issue:
[27] The trial judge did not err in deciding not to instruct the jury that they could draw an adverse inference from the failure of the respondents to call a witness from McMaster Hospital to testify about whether amnioreduction was used to treat TTTS at the time. Either party could have called that evidence if they thought it was important: see Lambert v. Quinn, 1994 CanLii 978 (ONCA), 110 D.L.R. (4th) 284, at pp. 287-88.
. Coffee Time Donuts Incorporated v. Toshi Enterprises Ltd

In Coffee Time Donuts Incorporated v. Toshi Enterprises Ltd (Div Ct, 2008) the Divisional Court found that the Small Claims Court deputy-judge below had over-extended the evidentiary consequences of the 'failure to adduce' principle:
Question #3: Can Jolin’s negligence be inferred from its failure to attend?

[25] The trial judge found that the owners of the franchise never defended the action and had “simply vanished.” He inferred, on a balance of probabilities, that the franchisee “must have caused the fire and in doing so, must have been negligent.” In the absence of evidence to the contrary, he then drew an adverse inference against Coffee Time, and found that the fire had been caused by someone’s negligence, and that such negligence was attributable to Jolin’s carelessness.

[26] It is common for a trial judge to draw inferences from the facts before him or her, but such inferences must be ones that can be reasonably and logically drawn from the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont..C.A.) at page 290. To make an unreasonable finding of fact is an error of law: Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] 2 S.C.R. 476.

[27] In this instance, there was no evidence to support either a finding of conduct falling below the standard of care applicable to the franchisee or of a causal connection between this conduct and the fire. The only evidence adduced at trial as to the cause of, or responsibility for, the fire was that the cause of the fire was unknown. Further, no evidence as to any negligence on the part of Jolin was presented.

[28] In this case, the trial judge indulged in pure conjecture or speculation in making a legal finding that could not reasonably or logically be supported by the evidentiary record. The trial judge was not entitled to infer legal culpability towards Coffee Time simply due to a procedural occurrence entirely unrelated to the issue of negligence, that is, Jolin’s failure to attend at trial. In doing so, he committed a legal error.
. Shantry v Warbeck

In Shantry v Warbeck (Ont CA, 2015) the Court of Appeal commented as follows on when a trial court may draw adverse inferences against a party who fails to introduce evidence, or fails to introduce adequate evidence, on a material fact issue:
[64] The appellants submit that, because they put forth extensive evidence to support their theory and the respondent did not lead sufficient evidence to support an alternative, the trial judge was required to accept the appellants’ theory of causation. By rejecting their theory, the appellants argue, the trial judge erred in law. They rely on Ediger v. Johnston, 2013 SCC 18 (CanLII), [2013] 2 S.C.R. 98, to support the following submission in their factum:
If the experts for [the] plaintiff and the defendant have conflicting theories [of causation], the court must consider if the defendant has introduced sufficient evidence to displace the plaintiff’s theory of causation – not just another theory but evidence in support of that theory.
[65] I do not read Ediger to support the appellants’ submission. The Supreme Court of Canada’s decision in that case makes it clear that the drawing of inferences against a defendant is permissive, not mandatory. As Rothstein and Moldaver JJ. wrote for the court, at para. 36:
The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. [Emphasis added.]
[66] The burden nonetheless remains with the plaintiff, as stated at para. 39:
Faced with … conflicting expert testimony on the feasibility of [the plaintiff’s theory of causation] and evidence of other potential causes, it was incumbent upon [the trial judge] to weigh the evidence before her and determine whether [the plaintiff] had proven causation on a balance of the probabilities. [Emphasis added.]
. R v Robinson

In the criminal case, R v Robinson (Ont CA, 2014), the Court of Appeal considered the circumstances that justify the conclusion that an admission by a third party, made in the presence of the defendent, has been adopted by a defendant as their own statement through their silence:
(a) General Principles relating to Adoptive Admissions By Silence

[48] David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at para. 36.04 sets out the general principles relating to adoptive admissions by silence, in part, as follows:
An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D’s

i. words;

ii. actions;

iii. conduct; or

iv. demeanour.

Assent may also be inferred from D’s silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.

The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction. [Emphasis omitted.]
[49] Under the heading “Related Provisions and Principles”, Watt J.A. sets out additional requirements where an accused’s silence is alleged to constitute an adoptive admission:
Where silence is the manner of an alleged adoption, there are several conditions that must be met:

i. D must have heard the statement;

ii. the statement must be about a subject matter of which D was aware;

iii. D must not have been suffering from any disability or confusion;

iv. the declarant must not be someone to whom D would be expected to reply, as for example, a child.
[50] These principles are derived, at least in part, from the seminal case R. v. Christie, in which Lord Atkinson held, at p. 554, that a statement made in the presence of an accused person is not evidence against him of the facts stated except to the extent that he accepts it by words, conduct, action or demeanour to make it in effect his own:
[T]he rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own…. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it.
[51] In addition to the actions of an accused that might lead to an inference of adoption that are referred to in Christie, this court has consistently held that an accused’s silence may lead to an inference of adoption of a statement made in the accused’s presence in circumstances where the accused could reasonably have been expected to reply.[5]

[52] In R. v. Eden 1969 CanLII 329 (ON CA), (1970), 2 O.R. 161 (C.A.), Gale C.J.O. explained the principle this way, at pp. 163-164:
The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.
[53] In R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), Martin J.A. cited, at p. 278, Phipson on Evidence, 11th ed. (1970), at p. 767, for the more general proposition that:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them.
[54] Martin J.A. repeated this basic formulation of the test in R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at pp. 539-40:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent. [Citations omitted.]
[55] In R. v. Warner 1994 CanLII 842 (ON CA), (1994), 94 C.C.C. (3d) 540, 21 O.R. (2d) 136 (C.A.), Griffiths J.A. expressed the test as follows, at p. 549:
Silence may be taken as an admission “…where a denial would be the only reasonable course of action expected if that person were not responsible”: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham; Butterworth’s, 1992). In R. v. Baron, Martin J.A. put the principle as follows at pages 539-40:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent.
[56] In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 549-550:
Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility.

Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made.
[57] This court’s most recent discussion of adoption by silence confirms the Baron and Wertman formulation of the test. In R. v. F.(J.), 2011 ONCA 220 (CanLII), 2011 ONCA 220, 269 C.C.C. (3d) 258, aff’d without reference to this point, 2013 SCC 12 (CanLII), 2013 SCC 12, 293 C.C.C. (3d) 377, Rosenberg J.A. said the following, at para. 46:
There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3. Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them: R. v. Baron and Wertman. Given AS's evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence. But, there was more; it was AS's evidence that they were all involved in the conversation about the Tylenol 3. … Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans. [Citations omitted, emphasis added.]
[58] Finally, I note that in S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013), the authors recommend a cautionary approach to the doctrine of adoption by silence at p. 7-137:
One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations. Jury suppositions about how an accused “should” behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. [Citations omitted.]
. R v D.E.

In the criminal case, R v D.E. (Ont CA, 2018) the Court of Appeal 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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Last modified: 05-01-23
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