R. v. Drake

Parties

Procedural Posture

Criminal / Jury Instruction (pre Closing)

Legal Issues

1. 1 Whether a jury should be instructed it may draw an adverse inference from the Crown's failure to call identified witnesses
2. 2 Whether the Crown improperly invited the jury to speculate about non-called witnesses and their conduct
3. 3 Proper limits of argument versus evidence and the distinction between inference and speculation

Ratio Decidendi

The judge exercised discretion to give a limited adverse inference instruction because the Crown, in argument, invited the jury to adopt narratives about non-called witnesses without having called them and with knowledge that those witnesses would not have supported the Crown’s narrative; therefore the jury must be told they may, but are not required to, infer that the Crown did not call those witnesses because their evidence would have been unhelpful, while also being reminded that other explanations are possible and that inference must be grounded in evidence rather than speculation. The circumstantial evidence instruction was also amended to emphasize the inference/speculation...

Court Disposition

Defence request to add pre‑review of evidence denied; judge granted a limited adverse inference instruction as requested and amended the circumstantial evidence instruction to emphasize inference versus speculation; revised instructions to be admitted as a Judge's Exhibit and placed at end of the evidence review.

Orders

• Request to pre‑review and pre‑emphasize particular witness evidence denied; Defence may address evidence in closing submissions.
• Adverse inference instruction given to jury in the terms set out in the decision, permitting but not requiring the jury to infer the Crown did not call Ricco Gallant and Karam Makhoul because their evidence would not have been helpful, while noting other explanations are possible.