Le juge a une discrétion pour admettre une déclaration comme étant faite par un témoin, alors qu'elle est préparée par un tiers, si elle est suffisamment fiable

R. v. Mitchell, 2018 BCCA 52

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[33]        The issue in this appeal arises because defence counsel created a document purporting to record the substance of a witness’ proposed evidence and provided a copy of that document to the witness for his or her review before testifying. In this circumstance it is necessary to determine whether the document created by counsel constituted a statement of the witness.

[34]        Section 10(1) of the Canada Evidence Act does not provide a right to obtain a copy of a previous statement from an adverse party: R. c. Peruta (1992), 1992 CanLII 3599 (QC CA), 78 C.C.C. (3d) 350 (Q.C.C.A.) (sub non R. c. Brouillette) at para. 17, leave to appeal ref’d 81 C.C.C. (3d) vi (note). It permits a witness to be cross-examined on a previous statement and sets out a basic procedure to be followed where a statement is to be used to contradict a witness:

10 (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.

[35]        This provision requires a statement to have been recorded in some way: in writing, reduced to writing, or by audio or video tape. In this case, the trial judge was satisfied that the notes constituted a statement within the meaning of s. 10(1) simply because Mr. Hanson’s oral statement had been reduced to writing by defence counsel. In my view, this factor on its own is not sufficient for notes to constitute a witness’ statement when they are neither written nor signed by the witness: see R. v. Handy (1978), 1978 CanLII 2446 (BC CA), 45 C.C.C. (2d) 232 (B.C.C.A.).

[36]        Aside from the obvious issues that arise where notes are prepared by defence counsel (such as the potential for counsel to become a witness), notes made by a third party should not be regarded as a witness’ statement unless there is some indication that they accurately set out the witness’ evidence. Notes that record brief snippets of what the witness has said provide selective pieces of information, often without a proper context, and may be of uncertain reliability. Cross-examination on such statements may be unfair and may potentially mislead the trier of fact: see R. v. B. (S.) (1996), 1996 CanLII 7978 (ON SC), 28 O.R. (3d) 409 (Gen. Div.) at para. 15.

[37]        That said, there is nothing in the Canada Evidence Act to suggest that a statement reduced to writing must be a verbatim rendition of the witness’ oral statement. Nor does a statement have to be written or signed by the witness: see R. v. Carpenter (1982), 1982 CanLII 3308 (ON CA), 1 C.C.C. (3d) 149 (Ont. C.A.). However, where the witness has not written the document, or signed or acknowledged its contents as accurate, there must be some “corresponding assurance of reliability” such as “circumstances demonstrating that the maker has attempted to record the words of the witness” (see B. (S.) at para. 14) or the witness’ own acknowledgement of accuracy.

[38]        Ultimately, it is within the discretion of the trial judge to determine, in the particular circumstances of each case, whether a document prepared by a third party is sufficiently reliable to be considered a witness’ statement, and if so, whether cross-examination on the statement is to be permitted.