Debriefing Judge Crabtree's REASONS FOR JUDGMENT March 2, 2011
My Fourth of Numerous Synopses (Judge Crabtree's actual wording is in quotations. Everything else is my understanding of the statements for the ruling.) THE FAILURE OF THE FATHER TO TESTIFY
There is no question that you will not have anticipated this part of the ruling. In the ruling document, points 199-211 are devoted to the legal possibility of drawing an adverse inference based upon the failure of Paul Bayne to testify in this court hearing. The judge noted that the original trial plan had included a testimony from the father, Paul, yet although Paul was present throughout the proceeding, Baynes' counsel indicated at the end of Zabeth's testimony, that her testimony was the conclusion of testimonies. Judge Crabtree defined why this becomes a curiosity since the infant has been in the care of both parents from birth, and further there were times when the father was alone with the child and the judge names these as September 23, 2007 and September 26, 2007 and in each case there was an incident. Judge Crabtree drew from The Law of Evidence in Canada, Second Edition (John Sopinka, Sidney N. Lederman and Alan Bryant, Butterworths: Markham Ontario, 1999), this conclusion - The ability to draw an adverse inference from the failure of a party to testify. Other sources as well informed Judge Crabtree that it was entirely within his purview to draw an unfavourale inference because Paul, without an explanation failed to testify. Crabtree posits that the adverse inference doctrine is more a matter of logic than of law. That is, the law permits an adverse inference to be drawn against a party in certain circumstances but does not require it. The drawing of an adverse inference falls within the arena of the trial judge.
Then importantly for the Baynes, Judge Crabtree states in Point  “In considering whether to draw an adverse inference in this case there are certainly questions that remain unresolved particularly in regard to the events of September 26,2007. Having said that, I am not satisfied in this case that it is necessary to draw an inference that the father's evidence would have been unfavourable to the case.”