Failure to Call Evidence Leads to Adverse Inference Against the Accused

Our latest Canlii Connects case summary considers a case from the Manitoba Court of Appeal (R. v. McLean, 2022 MBCA 60) where an accused was faulted for not calling evidence to corroborate his version of events. The case provides a nice example of when an accused can have their failure to call evidence held against them.

Issue: Did the trial judge err when they drew an adverse inference against the accused?

Facts: Mr. McLean transported significant amounts of fentanyl and cocaine from Vancouver to Winnipeg. He was charged with possessing those drugs for the purpose of trafficking. His defence was that he was a “blind courier”—the drugs were placed in his luggage in Vancouver without his consent or knowledge and he unknowingly conveyed them to Winnipeg.

Air travel and financial records established that, although Mr. McLean was on social assistance, he frequently travelled to Winnipeg. He said this was because of his work as a travelling musical engineer.

The trial judge disbelieved him. One of the reasons for doing so was Mr. McLean’s failure to call any evidence confirming his stated reason for coming to Winnipeg – his employment. Given that lack of evidence the trial judge drew an adverse inference.

Ruling:  The Court dismissed the conviction appeal.

The prerequisites to draw an adverse inference existed in this case

In certain situations, an adverse inference may be drawn by a trier of fact from a party failing to call a material witness or other material evidence.

 The conditions for a trier of fact drawing an adverse inference in a criminal case are:

1.    An adverse inference cannot be drawn as punishment for a party exercising their legal right not to call evidence, even when there is a wholly unjustified explanation for the decision.

2.    Because of the dangers of drawing an adverse inference, such as potentially reversing the burden of proof, the discretion to draw an adverse inference should be exercised with great caution and mindful of the division of responsibilities between the Crown and defence.

3.    An adverse inference can only be drawn when there is not a plausible explanation for the non-production of the evidence. 

4.    The missing evidence must be relevant to a material issue.  An adverse inference cannot be drawn as a result of matters unimportant to deciding the case or when there is already some evidence on the relevant point (even if it is of inferior quality).

Given that there are many potential dangers, adverse inferences in a criminal case are the exception rather than the rule, and are subject to many conditions

If drawn, there are limits on what use can be made of an adverse inference. Specifically, the adverse inference is only to assist in the evaluation of the accused’s credibility. The legal effect of the inference is not proof of the guilt of the accused but, rather, the conclusion that, if the missing evidence was called, it would be unfavourable to the defence.