R. v. Colangelo, 2007 ONCJ 489 (CanLII)
[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, 1996 CanLII 4008 (ON CA), 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), 1998 CanLII 7125 (ON CA), 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, theirmemory 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 memoryrevived. 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 refreshedmemory of the witness and not the document.
[30] Where a witness has no memory whatsoever of the event even after consulting a statement made by him, the witness can rely on the document. That is the situation with past recollection recorded. The Ontario Court of Appeal has distinguished between past recollection recorded and present memory revived in respect of prior statements. For the former, the document is the evidence and provided that the proper foundation is laid, it may be marked as an exhibit: Fleming v. Toronto Railway (1911), 25 O.L.R. 317; R. v. Salutin (1979), 11 C.R. (3d) 284. But there are strict rules governing the admissibility of evidence as past recollection recorded. In R. v. Meddoui 1990 CanLII 2592 (AB CA), [1990] 61 C.C.C. (3d) 345; 2 C.R. (4th) 316; Mr. Justice Kerans speaking for the majority of the Alberta Court of Appeal stated the criteria for admissibility as follows at p. 352 (C.C.C.):
(a) the past recollection must have been recorded in some reliable way;
(b) at the time, it must have been sufficiently fresh and vivid to be probably accurate;
(c) the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and
(d) the original record itself must be used, if it is procurable.
[31] In R. v. Weinberg (unreported) released on April 7, 1992, I stated the criteria as follows:
(a) first hand knowledge (of the witness);
(b) no present recollection (by the witness);
(c) an original record made at or near the time of the event while the witness’s memory was clear.
(d) a present attestation as to the accuracy of the statement.
[32] On November 9th, 1993 the Ontario Court of Appeal held that the four conditions stipulated in Weinberg required for admissibility of the statement on the basis as past recollection recorded, were established.
[33] A somewhat similar issue as in the case at bar came before Mr. Justice Nadel of the Ontario Court of Justice as recently as April 18th, 2007 in R. v. Nauma Kassam [2007] O.J. No. 2104. The authority is persuasive and not binding upon me. However I endorse what Justice Nadel has stated and refer to certain passages of his judgment. In paragraph 32 he states as follows:
There are in my view two answers to the complaint made by Mr. Houlahan on behalf of Mrs. Kassam. The first and most significant is that Mr. Houlahan’s submission that a witness must have an independent recollection before he is entitled to have that recollection refreshed and become greater or more clear is not in accordance with binding authority, and it is that error that has caused him to make the submissions that he has made…. The second answer to his complaint is one that is also shown in the authorities, namely that once notes are qualified and allowed to be used the question of the bona-fides of the professed present recollection is a matter for the trier of fact to consider and a matter for the trier of fact to weigh. The authorities also disclose that.
[34] His Honour then reviewed an article titled “Eliciting Evidence from the Reluctant, Adverse or Hostile Witness” by Marilyn Bartlett, an Assistant Crown Attorney, as well as R. v. Gwozdowski, 1972 CanLII 541 (ON CA), [1973] 2 O.R. 50; R. v. K.G.B., supra; R. v. Muise [1974].22 C.C.C. (2d) 487; and R. v. Fliss (2002), 2002 SCC 16 (CanLII), 161 C.C.C. (3d) 225; 209 D.L.R.(4th) 347 (S.C.C.), following which he stated:
I take it from the passage from Fliss and from the passage from K. G. B. that it does not matter if a witness has no present or current recollection before that witness’ recollection is sparked by reference to some other item, whether it is a piece of music, or a person, or in most cases some item written by him, or confirmed by him to be accurate. It is that item which then is the spark that revives the recollection.
So I reject the formulation submitted by Mr. Houlahan that there is some obligation in law that a witness must have some independent recollection before that witness is entitled to have the recollection revived by reference to an aide-memoire; rather, it is the aide-memoirewhich allows a current recollection to be revived.
[35] His Honour then quoted from The Law of Evidence (2nd ed) by David Paciocco and Lee Stuesser at p. 256 which indicated the type of questions asked for the purpose of qualifying notes. At paras. 40 to 47 he states:
They pose the questions as follows:
Q. “Do you wish to refer to your notes”
Q. Do you need them to refresh your memory?
Q. Were those notes made by you?
Q. Were they made near the time of the events that they record?
Q. Was your memory fresh at that time?
Q. Have there been any changes made to those notes since then?
You will see from those questions that although it is common practice in courts to hear the question asked, “Officer, do you have an independent recollection without reference to your notes?” and the answer normally given is, “Yes”, in my view, that is not a necessary question and answer that must be given for a witness to be entitled to be allowed to refresh their memory from notes. (Emphasis in original).
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