R v Cheveldayoff – 2018 ONSC 4329 (Akhtar):

[30] First, in the binding authority of the cases previously cited, the principle that emerges is that there is no obligation on the Crown to call a witness. Neither Cook or Jolivet make reference to directing the Crown to call a witness as a potential remedy. It is worth noting that one of the suggested remedies,- the court using its discretion to call the witness – was deemed to be an extraordinary measure to be used only in “rare” situations. One wonders, therefore, how extraordinary the situation would have to be to force the Crown to call the witness.

[31] Secondly, as noted in Jolivet, the Crown is under no obligation to assist the defence by calling a witness it deems unnecessary to its case but might assist the accused. As explained in Cook, the defence has full disclosure of the witness’s statement and is more than capable of calling the witness themselves, if they feel that that witness has necessary evidence to give. On this point, I note that the reasoning deciding the issue in Hillis appears to conflict with para. 21 of Jolivet, and para. 39 of Cook.

[32] Thirdly, I would hardly consider it in the interests of justice to force the Crown to call a witness it felt unnecessary, was untruthful, or might damage its case by assisting the defence. It is the Crown who bears the heavy burden in proving its case beyond a reasonable doubt and it should not be restricted in presenting its case in the manner and with the witnesses of its choosing. As observed in Cook, at paras. 30-31, when the Crown fails to call a witness, it runs the risk of falling short in discharging its burden of proof beyond a reasonable doubt. That, however, is a matter for the Crown to weigh.

[33] In this case, Ms. Murphy has full possession of all of Mr. Kamara’s statements. The thrust of her argument is the unfairness that befalls the defence by having to call the witness and (1) lose the right to cross-examine and (2) forgo the right to address the jury last. Both of these arguments were addressed directly in Cook and I find that they fail in this case. See also: R. v. Rybak, 2008 ONCA 354, at para. 173.

[34] This is not one of the “rare” instances in which the court should intervene in the adversarial process and call Mr. Kamara. His evidence is both helpful and harmful to both sides. It is a matter of tactical strategy for the defence whether they wish him to testify on Mr. Cheveldayoff’s behalf.

[35] The application is accordingly dismissed.