Si un témoin utilise des notes pour se rafraîchir la mémoire pendant son témoignage, il est évident que l'avocat de la partie adverse a le droit de consulter les documents sur lesquels il s'appuie

R. v. Slater, 2014 ONSC 1518

Lien vers la décision

[9]               At common law, if a witness uses notes to refresh his memory while testifying, it is clear that counsel for the other party is entitled to inspect the record that is being relied on.[2]

[10]           While there is some controversy over when counsel for the opposing party should be entitled to get the notes for review, the prevailing position in Ontario is that counsel should receive the notes in advance of the witness testifying.  In Cornerstone, the court held:

In my view, counsel cross-examining a witness is entitled to production of any document or notes (or item) that was reviewed (or examined) by the witness to refresh his or her memory before going into the box. It does not matter whether the act of refreshing occurred minutes, hours, days or months before testifying. Cross-examining counsel is entitled to production for the purpose of testing the reliability and truthfulness of the witness.[3]

 

[11]           Consequently, Defence has the right to receive and review all the notes of Dr. Flewelling in advance of him testifying.