R. v. Gadzo, 2009 ONCJ 126 (CanLII)
[7] In Fleming v Toronto R.W. Co, [1911] O.J. No. 40, MacLaren J.A., writing for the Ontario Court of Appeal commented on the means by which a witness could refresh a memory. The Court held:
23 The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466, as follows: "A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. ... The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct."
In the case at bar, Officer Kerr verified the notes were his own and made contemporaneously to the events which led to the charge.
[8] In Daynes v British Columbia Electric Railway Co., [1912] B.C.J. No. 94, Irving J.A., of the British Columbia Court of Appeal, also commented on the test to refresh a memory. In paragraph, the Court stated:
The practice of refreshing one's memory is an everyday affair, whether for the purpose of giving evidence in Court or merely for the recalling of one's engagements. One looks at the note of the incident and then is able to act or speak with certainty. The note is not the evidence. The testimony of the witness is that, having refreshed his memory by looking at the note, he is now able to make a statement.
Martin J.A., also commented on the use of a copy of a note, in Daynes. In paragraph 10, the Court found:
Assuming that evidence to be material, I have no doubt, after examining all the authorities cited to us, and also The King v. The Inhabitants of St. Martin's, Leicester (1834), 2 A. & E. 210, and 13 Halsbury's Laws of England, 595-6, on Evidence, that it should have been admitted; the loss of the original notes was proved, also the transcript thereof on the following day, and the accuracy thereof, and the memory of the witness had been exhausted on the subject; the right to refresh his memory by reference to the "exact copy" had, in my opinion, been established.
It is substantiated in Daynes that an original note need not be available to a witness as long as the witness can testify the note being used is an ‘exact copy’ of the original. It is then the testimony of the witness that is for the trier of fact to weigh not the note itself.
[9] In R v K.G.B., [1998]O.J. No. 1859, Osborne J.A. of the Ontario Court of Appeal, reviewed the issue of witnesses refreshing their memories from statements made long ago to police. The Court held:
17 The trial judge meticulously reviewed the testimony of both Mrs.D. and Mrs.McD. before he accepted it and relied on it. He concluded that the fact that both witnesses had refreshed their memories from statements that they had given to the police could affect the weight of their evidence. Nevertheless, he found as a fact that both witnesses had an independent recollection of the relevant events and that their evidence was reliable. The evidence of both witnesses supports this conclusion. In the end, the trial judge confronted the defence position concerning the weight to be given to Mrs.D.'s and Mrs.McD.'s evidence by stating in his reasons for conviction:
•It is the position of the defence that Mrs.D. and Mrs.McD. were honest but unreliable witnesses. The defence submits that Mrs.D. and Mrs.McD. should not have refreshed their memories from statements which were given to the police a substantial time, two and a half and three and a half years respectively, after the events ... While I believe that it is permissible for a witness to refresh his or her memory out of court from notes which were not made contemporaneously with the events about which he or she is testifying it is equally clear that doing so can, and does, affect the weight to be given to the witness's evidence.
18 I see nothing wrong with either witness reviewing her police statement before testifying. There is also nothing wrong with a defence counsel attempting to determine in cross-examination whether Mrs.D. or Mrs.McD. had a present memory of events about which she testified. What triggers recollection is not significant. This was long ago made clear in 1814 in Henry v. Lee (1814), 2 Chitty 124, where Ellenborough L.C.J. said:
•If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence but the recollection of the witness. [Emphasis in original.]
See also R. v. Muise (1974), 22 C.C.C. (2d) 487.
No suggestion was made in K.G.B that the witnesses had kept either the original (highly unlikely as it was a statement to the police) or a copy of their statement. Further the Court accepted that any document may be used to refresh a memory but made no inference that the document must have been maintained under the control of the witness.
[10] In R v Fliss, [2002] S.C.J. No. 15, Arbour J., of the Supreme Court of Canada, considered the issue of using a recording of a surreptitiously intercepted conversation by a police officer to refresh his or her memory. Justice Arbour held at paragraph 8:
This half-way remedy, if I may call it that, is what led to the procedural difficulty in the present case. It essentially precludes the admission in evidence not of the product of the intercept (the private communication), but of the best evidence thereof (the recording). In light of this, it would neither make sense, nor be feasible to attempt to preclude the witness from refreshing his or her memory from the recording. This simply continues to be a matter governed by the common law. A witness may refresh his or her memory prior to testifying, as long as he or she testifies from present memory revived by the instrument that refreshed it, whatever that instrument may be.
Binnie J, also writing in Fliss, held in paragraph 45:
There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, that becomes evidence. The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background. If the recollection here had been stimulated by hearing a tape of his conversation with the accused, even if the tape was made without valid authorization, the officer's recollection -- not the tape -- would be admissible.
The Supreme Court verified in Fliss that a broad range of instruments or stimuli may be used to prompt a memory from which evidence can be given. By accepting that an instrument such as background music or the sight of someone could stimulate a memory, the Supreme Court effectively acknowledged that a witness need not have control over this stimulus.
[11] In Cornerstone Co-operative Homes Inc. v Spilchuk, [2004] O.J. No. 4094, Quinn J., of the Ontario Superior Court of Justice, set out guidelines for the refreshing of memory before and at trial. The Court held:
13 The following are some of the guiding principles in this area of the law:
•(a) There is a distinction between present memory revived and past recollection recorded: in the former, something once remembered is again remembered by means of the memory being jogged by reference to, for example, a note; in the latter, "one has a record of what was once remembered but is no longer remembered . . . [I]t is only where a present memory is actually revived that it can be said to be 'refreshed'": see Mewett, Alan W., Witnesses (Toronto: Carswell, 1997 -- Rel. 2), pp. 13-2 and 13-3. [page107]
•(b) The memory of a witness may be refreshed by any document. "[A]nd it makes no difference that the memorandum is not written by [the witness], for it is not the memorandum that is the evidence but the recollection of the witness": see Henry v. Lee (1814), 2 Chit. 124, approved in R. v. B. (K.G.) 1998 CanLII 7125 (ON CA), (1998), 125 C.C.C. (3d) 61, [1998] O.J. No. 1859 (C.A.), at p. 67 C.C.C.
•(c) In a case where a witness refreshes his or her memory "from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact . . .": see R. v. B. (K.G.), ibid.
•(d) There is no need for the note or document used to refresh memory to have been made contemporaneously with the facts in the note or document: see R. v. B. (K.G.), supra, at p. 69 C.C.C.
•(e) There is nothing wrong with a witness reviewing a written statement made by her years earlier for the purposes of refreshing her memory before trial and there is nothing wrong with cross-examining counsel attempting to determine whether the witness "had a present memory of events about which she testified": see R. v. B. (K.G.), supra, at p. 67 C.C.C.
•(f) The statement in R. v. Kerenko, Cohen and Stewart, [1965] 3 C.C.C. 52, 49 D.L.R. (2d) 760 (Man. C.A.), at p. 53 C.C.C., that "it is only where the witness requires his notes to refresh his memory at trial that he may be called upon to produce them" (emphasis added) would not seem to be good law, at least in Ontario.
•(g) It would also seem to be true that it does not make any difference how long before trial the refreshing occurs. Cross-examining counsel is entitled to explore this and other matters to ascertain the reliability and truthfulness of the witness.
The Court in b) accepted that a memory may be refreshed by a document not written by a witness which therefore may not necessarily have been under the control of the witness. In c), the use of an external source or event also implies that a witness may not have control over the source or event which stimulated the memory.
[12] In R v Colangelo, [2007] O.J. No 4070, Lampkin J., of the Ontario Court of Justice, considered an appeal from a ruling where the trial court decided that a police officer must have an independent recollection of events prior to refreshing his memory from his notes. The Court held:
26 Perhaps the first rule of the law of evidence is that all evidence that is relevant that goes to prove a fact in issue and not subject to any exceptions such as the rule against hearsay, is admissible: R. v. Zeolkowski 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378; R. v. Watson, 108 C.C.C. (3d) 310, (Ont. C.A.); Cross on Evidence (6th ed. 1985).
27 Evidence is generally led through the viva voce testimony of witnesses. Witnesses do not often recall the event about which they are testifying or the details thereof. Witnesses may refresh their memory from a previous statement, even one not made contemporaneous with the events about which the witnesses seek to testify leaving it open to the defence to attempt to demonstrate through cross-examination that the witnesses had, in fact, no present memory of the events or that the memory was unreliable: R. v. B.(K.G.) 1998 CanLII 7125 (ON CA), (1998), 125 C.C.C. (3d) 61. Witnesses may also be allowed to refresh their memory by reference to an earlier deposition such as a preliminary hearing transcript: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191; 114 C.C.C. 1; 23 C.R. 1.
28 Professionals such as doctors, nurses, lawyers, judges, police officers, deal with hundreds of cases over the course of weeks, months or years. They cannot possibly recall all and so they make notes to trigger their memory of events. They may readily recall some cases -- the delivery by a doctor or a nurse of the first child; counsel's first murder case or initial appearance in the Supreme Court of Canada; the swearing in of a judge; the first investigation by a police officer into the affairs of a major criminal organisation. But in many, if not most cases, their memory will be refreshed only after consulting their notes. That does not mean to say that the person does not have an independent recollection of the event.
29 A forgetful witness may rely on any means to jar or spark a memory. What triggers recollection is not significant. In this way the witness' memory is presently revived in the witness box and he or she can then give oral testimony of the remembered event present memory revived. Although not the only way, the usual means to revive memory is by reference to a written document made at an earlier time by the witness: see The Law of Evidence in Canada, (2nd ed.) by Sopinka, Lederman and Bryant, p. 924, para. 16.77. The evidence is the refreshed memory of the witness and not the document.
Justice Lampkin’s decision emphasizes the need for a witness to be allowed to use anything which triggers a recollection. This implies that the source of the ‘trigger’ need not have been within the control of the witness.
[13] The Law of Evidence in Canada, (2nd ed.), provides some helpful guidance as well. On page 931, Section 4 discusses ‘What Records or Devices May be Used to Refresh Memory?’ Subsection 16.91 states:
The use of a copy of the record, when the original is unavailable, has been judicially frowned on, unless the copy itself satisfies the test applicable to the original. In R v Elder, the Court refused to allow a policeman to use the typewritten copy of his notes, because the copy was prepared when the facts were no longer fresh in his mind. The better view, however, is that a copy may be used if the absence of the original is accounted for, and a witness proves that the copy is a true reproduction of the original. If the copy contains changes or is a distillation or summary of the original, its use should be disallowed unless the witness had a fresh recollection of the facts when the changes were made.
This reinforces the findings in Daynes. If an original need not be produced and a true copy will suffice, when properly verified as such, it is therefore, clear that a police officer need not personally maintain his original notes.
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