R. v. Fast, 2009 BCSC 1671
[16] In order to decide this question, I will address two arguments by the appellant. First, whether it was open to the judge to find the appellant had in fact refreshed his memory, given that he did not refer to his notes on the stand or shortly before (“timing of the refresh”). Second, whether there was insufficient evidence to find that the appellant had refreshed his memory (“the degree of the refresh”).
[17] Counsel for the respondent submits that the appellant did not really refresh his memory from the refresh document because he did not need to refer to it while testifying. He submits that the evidence must show that the witness requires the notes when testifying or just before to testifying. He relies on R. v. Kerenko, Cohen and Stewart (1964), 1964 CanLII 492 (MB CA), 49 D.L.R. (2d) 760, 51 W.W.R. 53 (Man. C.A.) [Kerenko] [Kerenko cited to W.W.R.], which he submits is the governing authority. In Kerenko, a police constable refreshed his memory from his notes at an unspecified time before trial. The Court of Appeal concluded at 54 that the constable did not have to produce the notes because he didn’t need them when giving testimony:
The police officer freely admitted in cross-examination that he had referred to his notes to refresh his memory but gave no indication when he did so. …The notes were not used when the constable gave his testimony and he is not bound to produce them under such circumstances. The opposite would lead to the situation that every time notes in writing have been prepared, the party who prepared them would be bound to produce them if requested because, obviously, he may have made use of them at some time to refresh his memory. It is only when the witness requires his notes to refresh his memory at trial that he may be called upon to produce them, and this to test his accuracy and credibility since he was unable to give his evidence without the use of same.
[Emphasis added]
[18] The Appellant further submits that I should follow Kerenko and distinguish the appellant’s case from both R. v. Musterer (1967), 1967 CanLII 817 (BC PC), 61 W.W.R. 63, [1967] B.C.J. No. 36 (Mag. Ct.) (QL) [Musterer] [Musterer cited to QL], and R. v. Lewis (1968), 1968 CanLII 830 (BC SC), 67 W.W.R. 243, [1969] 3 C.C.C. 235 (B.C.S.C.) [Lewis] [Lewis cited to W.W.R.]. In Musterer, a Crown witness refreshed his memory just two and a half hours before testifying and, in Lewis, mere moments before. In both cases, the court ordered that the witness produce the notes to defence counsel for the purpose of cross-examination. The appellant submits that the timing of the witness’s review of the notes is the decisive factor when deciding whether the witness has refreshed; that is, the witness must review the notes while testifying or very close to that time before this can amount to a “refresh”. In the case at bar, the appellant testified that he had reviewed the notes “in the past few days,” timing that counsel submits is simply not contemporaneous enough to his testimony at trial to constitute a “refresh”. I cannot agree that this interval is too long to permit a finding that the appellant had refreshed.
[19] The court in Lewis explains that the decision as to whether notes must be produced in order to test the credibility of a witness turns on the individual facts of the case and lies within the discretion of the trial judge. The court also found that the trial judge unnecessarily fettered his discretion in finding that he could order production of the notes only if the witness required them during his testimony, pointing out at 245 that there is no less a need to test the credibility and reliability of a witness who has refreshed their memory just before trial than during it:
Obviously a witness who has paced up and down the corridor refreshing his memory from notes immediately prior to going into court is just as much refreshing his memory "at trial," as when he produces those notes in court.
[20] In coming to this conclusion, the court in Lewis agreed with the following comments of Levey P.M. in Musterer:
[4] I do not suggest that on each and every occasion notes in writing have to be produced, but in the instant case where the evidence clearly shows that a witness has refreshed his memory immediately prior to the giving of the evidence then he has obviously used the notes to aid himself in giving that evidence. It is analogous to the situation where a witness during a short adjournment during the course of a trial could go outside the courtroom to refresh his memory from the notes and then come back in and not use the notes. Quite obviously he has, in the latter instance, utilized the notes. A direction to produce notes to assist in cross-examination of a witness is, in my view, a matter of discretion for the trial Judge or magistrate, based on the witness' evidence as to when he refreshed his memory in relation to the trial, and in the instant case, I do readily distinguish, on the evidence, the case at bar from that of Reg. v. Kerenko referred to above.
[Emphasis added.]
[21] Levey P.M distinguishes Kerenko because in that case there was no evidence before the court as to when the witnesses had refreshed their memories; whereas, on the facts before Levey P.M. in Musterer, the evidence showed the officer had refreshed his memory two and a half hours before testifying.
[22] I respectfully disagree with Levey P.M.’s comment, if meant to suggest that the exercise of the judge’s discretion is based only on when the witness says he refreshed his memory. When evidence shows that a witness has relied on notes or some other document to refresh their memory before testifying at trial, they have placed in issue the degree to which their testimony relies upon the refresh document that is not in evidence. Therefore, the credibility and reliability of their evidence is in question. A witness who has refreshed their memory may display a command of critical events that gives a misleading impression of what they actually recall, and consequently unjustifiably enhance their credibility and reliability as a witness in the eyes of the court.
[23] Insofar as timing of the refresh is concerned, one witness might not refresh until a month before trial, but take a lot of time and trouble doing it, while another witness might simply glance at the same document for a few seconds before testifying. As a result, the time and trouble taken to refresh is more significant than when the refresh occurred. The underlying objective is that the court receives the best possible facsimile of the witness’s memory, not that of the refresh document.
[24] In my view, when a witness refreshes, evidence about the degree to which their reading of the document has refreshed (or influenced) their memory is the governing question for the exercise of the judge’s discretion on the question of whether the witness has refreshed their memory. Evidence about when the witness reviewed the document is an important consideration in deciding that question, but it is not conclusive, and the timing of the refresh is only one factor, albeit an important one, to consider. Restricting the question to the timing of the refresh unduly fetters the evaluative exercise of the judge’s discretion. As such, and in light of Lewis, it appears that Kerenko is not good law in British Columbia, at least insofar as it holds that a witness must require their refresh notes when testifying before the judge can order the witness to produce them. Cornerstone Co-Operative Homes Inc. v. Spilchuk (2004), 2004 CanLII 32328 (ON SC), 72 O.R. (3d) 103, [2004] O.J. No. 4049 (Sup. Ct.) (QL) [cited to QL] has restricted the application of Kerenko in Ontario:
[13] The statement in R. v. Kerenko, Cohen and Stewart ... 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” ... would not seem to be good law, at least in Ontario.
[25] It is also important that the judge be able to assess the credibility of a witness where a document they have reviewed might have modified or influenced their testimony (rather than just refreshing their memory). Finch J.A., as he then was, explains this in Vancouver Community College v. Phillips, Barratt (1988), 28 C.L.R. 277, [1988] B.C.J. No. 980 (S.C.) (QL) where defence counsel and the defendant had made handwritten notes on a draft of an expert’s report, potentially modifying the expert’s opinion. The court found that, by calling the expert, the defendant had waived privilege over the document. Finch J.A. noted the importance of reviewing the marked up version of the expert’s draft report at 281:
I am interested in the witness' opinion and the weight which I may properly attach to it. If his opinion has been modified in some way by communications from others, then I think I ought to be told all that there is to know about such modifications, no matter whether the communications which led to those changes or the notes which might serve to refresh the witness' recollection of such communications are recorded in his own hand or that of the lawyer or the party who hired him.
[Emphasis added.]
[26] As I understand this statement, a judge may need to decide whether the document has modified or influenced the witness’s recollection and, if so, the extent of that modification or influence. The ultimate objective is to ensure that the trier of facts receives the closest possible facsimile of the witness’s own memory and knowledge.
[27] In the case at bar, the learned trial judge should have first evaluated the degree to which the appellant had actually refreshed his memory from the document and had to rely on it for his testimonial memory before ordering him to produce it, even if he had concluded that privilege did not protect the document, as discussed below. Unfortunately, there was little evidence presented about the degree to which the appellant had actually refreshed his memory, or needed to rely on the refresh document in order to testify.
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