Past Recollection Recorded

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General Principles

Where a witness has testified that he cannot recall core details of a statements made but that she told the truth whenever speaking to them. The Court may admit the notes or document if it is satisfied that they meet the Wigmore criteria: [1]

  1. Reliable recording: the past recollection must have been recorded in some reliable way;
  2. Timeliness: at the time the record was created, the recollection must have been sufficiently fresh and vivid to be probably accurate;
  3. Voucher for Accuracy: 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
  4. Absence of Memory: the witness must have no memory of the recorded events.

In practice counsel should establish:[2]

  1. that the witnesses memory is exhausted and cannot answer the question;
  2. that a record was made by the witness or on behalf of the witness;
  3. the record was made near the time that the information was learned;
  4. the information was fresh in their mind at the time;
  5. the information was recorded from what they knew at the time and was done as accurately as possible.

Counsel can then asks the record to be put in as an exhibit.

An example would be where asking a witness to recall a licence plate number that they observed and wrote down in a statement. This statement or note would have been made at a time when the information was fresh in their mind and they made an effort to be accurate.

The witness will be asked about whether they recall the licence plate number. Often they will not recall the number by heart, this will prompt a request to introduce past recollection recorded. Counsel should go through questions establishing the lack of memory; the existence of the record; the circumstances of its creation; and the accuracy of its contents.

  1. adopted in R v Fliss 2002 SCC 16 (CanLII) at para 63
    see also: R v Pilarinos, [2002] BCJ No. 1153 (BCSC), 2002 BCSC 798 (CanLII), at paras 7 – 12
    R v Richardson, 2003 CanLII 3896 (ON CA)
    R v Meddoui, 1990 CanLII 2592 (AB CA)
    R v Wilks, 2005 MBCA 99 (CanLII)
    R v McBride 1999 CanLII 2317 (ON CA), (1999), 118 O.A.C. 139, 133 CCC (3d) 527 at 530
    R v Eisenhauer 1998 CanLII 1901 (NS CA), (1998), 165 N.S.R. (2d) 81, 123 CCC (3d) 37 (C.A.) at 74
    c.f. present memory revived
  2. R v McCarroll, 2008 ONCA 715 (CanLII) - sets out four of the key criteria

As Compared with Present Memory Revived

See also: Refreshing Memory

There has been a recognized misconception with counsel that a witness can "refer to notes only if he made the notes reasonably contemporaneously with the event, or if someone else made the notes, he verified the accuracy of the notes when the events were reasonably contemporaneous in his mind".[1] These additional requirements only apply where the doctrine of "past recollection recorded" is being used to admit the records into evidence.[2]

Error in making the distinction can result in a conviction being overturned where evidence relied upon was the product of document recitation rather than independent memory.[3]

  1. R v Bettgert, 1980 CanLII 321 (BCCA) at p. 523 to 524
    R v Pickunyk, 2012 ABPC 318 (CanLII) at paras 18 to 23
  2. Pickunyk, ibid. at para 19
    R v Shergill (1998), 13 C.R. (5th) 160 (Ont. Gen. Div.)(*no CanLII links) per Ferguson J.
  3. e.g. Pickunyk, supra at para 28
    R v Wilks, 2005 MBCA 99 (CanLII) at paras 41 to 42

See Also