The Best Evidence Rule – Adverse Inference
Cases referenced in this post are:
- Blatch v. Archer (1774), 1 Cowp. 63
- R. v. Jolivet,  1 S.C.R. 751
- Buksh v. Miles, 2008 BCCA 318
- Jin v. Spurrel, 2017 BCSC 1256
The Best Evidence Rule relates to what we know as “adverse inference” which can be drawn when the “best evidence” is not presented at trial. A decision by counsel to decide which witnesses to call is critically important. In the absence of the “best evidence”, an adverse inference can be made by a Court or Jury.
In making an adverse inference, a Court, or Jury can draw a conclusion based on the failure of the party to call a key witness at trial whose testimony would be “superior” in relation to the facts that need to be proved.
There are significant risks that come along with not calling a key and superior witness. The leading authority on this subject is Buksh v. Miles, 2008 BCCA 318 which states:
The notion of adverse inference is related to the best evidence rule. The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, s. 287, at 202-3, offers valuable guidance:
Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.
Buksh was recently referenced in Jin v. Spurrel, 2017 BCSC 1256 when a key witness was absent from trial. The defence counsel sought to have the jury instructed that an adverse inference could be drawn due to the Plaintiff’s failure to present a key witness, who they claim would have confirmed that the Plaintiff was not suffering from the mental injury that was being presented.
The Court reviewed the principles:
“The threshold is whether “a reasonable juror could draw the inference sought”: Buksh v. Miles, 2008 BCCA 318 at para. 35.
In R. v. Jolivet,  1 S.C.R. 751 at para. 25, Justice Binnie, writing for the Court, states:
The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”
In my view, in the context of the claimed mental injury and the video surveillance, Ms. Zhang’s evidence would be “superior” to that of the plaintiff or of his wife who have a direct or indirect financial self-interest in the outcome of the litigation. It would also be superior to that of Mr. Qiu who only saw the plaintiff on three occasions. Ms. Zhang would have observed the plaintiff on many occasions and may have been able to testify as to whether the plaintiff, as he was shown in the video surveillance, was exceptional, typical, or otherwise.
In the circumstances, I am satisfied that a reasonable juror could draw the inference sought. I will instruct the jury with respect to the possibility of drawing an adverse inference.
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