Bruce Lee-Shanock

During a criminal jury trial, defence counsel sought leave to comment in closing submissions on the Crown’s failure to call a police witness who had relevant observations regarding the complainant’s impairment.

The court held that an adverse inference against the Crown was unavailable because the officer was ultimately called as a defence witness and testified.

The proposed defence submission criticizing the Crown’s decision not to call the officer was found improper because it focused on Crown counsel personally rather than the evidence.

However, the court permitted a separate submission highlighting evidence that the officer was described as thorough and capable, as it related directly to the evidentiary record.

The ruling emphasized that counsel have broad discretion in choosing which witnesses to call and discouraged personal commentary about opposing counsel’s litigation decisions.

The Crown sought to introduce a video recording of a complainant’s participation in a photographic lineup following a robbery.

During the lineup, the complainant initially selected the wrong photograph but verbally described identifying characteristics of the robber while reviewing the sequence.

The defence objected on the basis that the video constituted inadmissible hearsay, lacked probative value due to the erroneous identification, and risked impermissible prior consistent statements.

The court held that evidence of out-of-court identification and the identification process may be admitted as original evidence, particularly where the identifying witness testifies and is subject to cross‑examination.

The video evidence was admissible because it provided the jury with the full narrative of the identification process and assisted in assessing the reliability of the witness’s observations.