Rafraîchir la mémoire d'un témoin

R. v. Thom, 2010 ONCJ 492 (CanLII)

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[4]                       It is well-established that notes, documents and other testimonial aids can be used for two purposes: (1) to provide a record of a past recollection where the witness has no present memory of events; or (2) to refresh a witness’s present memory of events. The qualification of notes procedure is designed to determine the purpose for which a witness requires the notes. 

(1) Past Recollection Recorded

[5]                       If the witness has no memory of the events, the notes themselves constitute a record of a past recollection and become admissible evidence themselves as an exception to the hearsay rule, if four conditions are met.

[6]                       As summarized in R. v. J.R., 2003 CanLII 3896 (ON CA), [2003] O.J. No. 3215 OCA at para. 24, these conditions are:

1.      Reliable record: The past recollection must have been recorded in a reliable way.  This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it.  Second, the original record must be used if available.

2.      Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.

3.      Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.

4.      Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded. 

These conditions need only be met in the case of a past recollection recorded because the notes are entered as an exhibit at the trial.

(2) Present Memory Refreshed

[7]                       On the other hand, if a witness has a recollection of the events and wishes to use his or her notes to refresh present memory, the evidence is the refreshed memory of the witness, not the notes.  Accordingly, there is no test or conditions to be satisfied before the notes can be used to refresh a witness’s memory.

[8]                       What triggers recollection is not significant. Any external source or event may be used to refresh a witness’s memory: R. v. K.G.B.(1998), 1998 CanLII 7125 (ON CA), 125 C.C.C. (3d) 61, paras 18-20 (Ont. C.A.).  

[9]                       Thus, a witness may use any notes or document to jog his or her memory, including a preliminary hearing transcript (see Reference re R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 (S.C.C)), a newspaper copy of a story he had written where the original was lost (seeTopham et ux v. McGregor et ux (1844), 1 Car.& K. 320; 174 E.R. 829 and a carbon copy of a memorandum (see R. v. Alward [1976] N.B.J.  No. 220 N.B.C.A.(affirmed [1977] S.C.J. No. 63 without comment on this issue (S.C.C.)).

[10]                  It does not matter who made the notes, or when they were made.

[11]                  Witnesses may use the notes to refresh their memory before testifying (as in R. v. K.G.B.) or when they are testifying in the witness box (as in Coffin).

[12]                  When a witness refreshes his or her memory from some external source or event, the witness has a present recollection of events, albeit one that has been refreshed. It is up to the judge or justice to determine how reliable and truthful that recollection is.  In other words, after cross-examination, it is up to the trier of fact to determine the weight to be given to the witness’s testimony.