Refreshing Memory

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 95812)

General Principles

The doctrine of "present memory revived" is the manner in which a witness may refresh their memory.

A witness can use any document to refresh their memory.[1]

The key elements to the use of the doctrine of present memory revived is:[2]

  1. an independent memory of events;
  2. the inability to recall the memory; and
  3. the "thing" is capable of "sparking" or "jogging" the independent memory

There is "no precise formula needed to be followed", there should be evidence of the following:[3]

  1. Witness knows the facts, but has a memory lapse on the stand.
  2. Witness knows his report or other writing will refresh his memory.
  3. Witness is given and reads the pertinent part of his report or other writing.
  4. Witness states his memory has now been refreshed.
  5. Witness now testifies what he knows, without further aid of the report or other writing.

In order to prevent the witness from exploiting this rule to "simply regurgitate" their evidence rather than actually refresh their memory, opposing counsel must have access to the item used to refresh memory.[4]

It will not be applicable where the witness simply states something that contradicts something that was made in a prior statement.

Refreshing memory is permitted by the doctrine of "present memory revived" which permits a testifying witness to jog their memory.[5] It is not the aid that becomes the evidence but rather it is only a mechanism to evoke the memory of the witness which produces the evidence.[6]

Traditional doctrine of refreshing memory permits a person to use anything in writing "made or verified by himself concerning and contemporaneously with the facts to which he testifies". Where it was not written by him he reviewed the statement when the facts were fresh in his mind and "he knew the statement to be correct."[7]

More recent views have suggested that a witness "may consult with any document while testifying. As long as the document sparks an actual recollection of the event recorded."[8]Given that the document used to refresh is not evidence and the ability for counsel to cross-examine the witness on their memory, "there is no reason why the document that is used as the memory trigger should have to meet the strict requirements of time, verification and accuracy. In other words, subject to an exclusionary discretion where the document may be inappropriately suggestive, a witness should be entitled to inspect any document in court to see if it triggers an independent recall."[9]

Appellate Review

Whether a witness's memory has been in fact refreshed is a question of fact.[10]

  1. ↑ Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1999), at para 16.77
    R v KGB, 1998 CanLII 7125 (ON CA), 125 CCC (3d) 61, per Osborne JA
    R v Bengert et al (No. 5)(1978), [1979] 1 WWR 472, (BCSC)(*no CanLII links) aff’d 1980 CanLII 321 (BCCA), 53 CCC (2d) 481, per curiam at 521-24 leave ref'd [1980] 2 SCR v.
    Henry v Lee (1814), 2 Chitty 124 (H.L.) (UK) (...[I]f upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference, that the memorandum was written by himself, for it is not the memorandum that is the evidence but the recollection of the witness. [emphasis in original])
  2. ↑ e.g. see Stone v Ellerman, 2009 BCCA 294 (CanLII), 9 WWR 385, per Finch CJ, at para 53 onward for general discussion per Smith J. in dissent. Majority decided on issue unrelated to rules of memory refresh.
  3. ↑ R v Wilks, 2005 MBCA 99 (CanLII), 201 CCC (3d) 11, per Philp and Freedman JA, at para 43 ("Although no precise formula need be followed, the substance of what is dealt with in the following extract from [the book] Fundamentals of Trial Technique...")
  4. ↑ Stone v Ellerman, supra, at para 56
  5. ↑ eg. KGB, supra at 18
  6. ↑ Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), [2004] OJ No 4094, per Quinn J, at para 13
    See also R v Gadzo, 2009 ONCJ 126 (CanLII), per Cuthbertson J
  7. ↑ Fleming v Toronto R.W. Co, [1911] OJ No 40(*no CanLII links) , per MacLaren JA, at para 23 ("The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466, as follows: "A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. ... The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct.") aff'd at 47 SCR 612, 1913 CanLII 3 (SCC)
  8. ↑ Paciocco and Stuesser, The Law of Evidence, Fourth Edition, (2005, Irwin Law Inc), at p. 377
    R v Biondo, 2009 ONCJ 171 (CanLII), per Dechert J, at para 16
  9. ↑ The Law of Evidence, Fourth Edition, supra, at p. 383
    Biondo, supra, at para 21
  10. ↑ R v Podolski, 2018 BCCA 96 (CanLII), BCJ No 847, per curiam, at para 352
    Nelson, supra at para 13

Distinction with Past Recollection Recorded

Present memory revived is the method of "jogging" a memory and bring it back into the witness's mind. The witness may examine a thing, such as a note, which has the effect of putting a memory into mind. By contrast Past Recollection Recorded permits the admission of a record that is a past memory reduced to record, regardless of the witness's ability to bring the memory back into mind. [1]

Present memory revived is separate and distinct from Past Recollection Recorded which is a form of hearsay. In the latter case, the document is evidence that the judge may rely upon.

  1. ↑ R v Wilks, 2005 MBCA 99 (CanLII), 201 CCC (3d) 11, per Philp and Freedman JJA, at paras 18, 19
    Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), [2004] OJ No 4094, per Quinn J, at para 13
    see Mewett, Alan W., Witnesses (Toronto: Carswell, 1997 -- Rel. 2), pp. 13-2 and 13-3 ("one has a record of what was once remembered but is no longer remembered . . . [I]t is only where a present memory is actually revived that it can be said to be 'refreshed'")

Timing of Refresh

Traditionally, the timing of the refresh may be made (a) once the witness has given testimony inconsistent with a prior statement[1] or (b) once the witness has exhibited difficulties recalling the events they are testifying to.[2]

There's no need for the documents be contemporaneous with the events it documents.[3]

It does not make a difference how long before trial the refreshing occurs.[4]

  1. ↑ R v Laurin, 1902 CanLII 116 (QCCQ), 6 CCC 135, at paras 8, 14
    R v Nelson, 2002 MBCA 53 (CanLII), per Lemaistre JA, at para 9
  2. ↑ Nelson, ibid., at para 9
  3. ↑ Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), [2004] OJ No 4094, per Quinn J, at para 13 R v KGB, 1998 CanLII 7125 (ON CA), (1998), 109 OAC 138, 125 CCC (3d) 61, per Osborne JA, at p. 69 [CCC]
  4. ↑ Cornerstone, supra and 13

Opposing View on Memory Refresh

Certain courts have interpreted the requirements of memory refresh as including the additional requirements that:[1]

  • the record be made contemporaneous to the events that it records[2]
  • it was written in the hand of the person who is testifying, unless it was read by the witness when the memory was fresh in their mind;[3]
  • the record has not been subject to any edits since the time that it was made.
  1. ↑ e.g. see Phipson on Evidence, 11th ed. (1970), at pp. 632-3, art. 1528
    Paciocco and Steusser, "The Law Of Evidence", (2d Ed), at p. 256
  2. ↑ e.g. R v Gwozdowski, 1972 CanLII 541 (ON CA), 2 OR 50, per Gale CJ, citing Phipson ("A witness may refresh his memory by reference to any writing made or verified by himself concerning, and contemporaneously with, the facts to which he testifies; ")
  3. ↑ see Gwozdowski, ibid.

Thing to be Used to Refresh Memory

The tool used to jog the memory can be anything (a sound, a picture, a smell, etc). The trigger is not significant.[1]

Any type of document may be used to refresh a witness's memory. It does not have to be a document written by the witness at all.[2]

Even evidence that would not be admissible for reasons including that it was obtained through a Charter violation may still be used to refresh memory.[3]

Memory can be refreshed by any document. It does not matter whether the witness was the author.[4]

There is nothing necessarily wrong with officers reading the statements of other witnesses as long as no coaching is involved.[5]

Traditionally, counsel can refresh the memory of a witness who is forgetful due to the span of time or "timidity."[6]

An officer does not have to maintain possession or control over the notes that he uses to refresh his memory.[7]

Even notes that are not accurate can be used as an aide-memoire.[8]

Timing of the Creation of Document

The document need not have been made contemporaneously with the facts recorded in it.[9]

Requirement to Produce

The record that is used to refresh a witness's memory—whether in trial or months before—must be produced to the other side.[10]

Where the accused is testifying, any record relied upon by a defence witness that is used as memory refresh must be produced to the Crown.[11] Using interview notes for memory refresh will constitute a waiver of litigation privilege.[12]

  1. ↑ eg. R v KGB, 1998 CanLII 7125 (ON CA), (1998), 109 OAC 138, 125 CCC (3d) 61, per Osborne JA at 18 ("I see nothing wrong with either witness reviewing her police statement before testifying. There is also nothing wrong with a defence counsel attempting to determine in cross-examination whether Mrs. D. or Mrs. McD. had a present memory of events about which she testified. What triggers recollection is not significant.")
    R v Colangelo, 2007 ONCJ 489 (CanLII), [2007] OJ No 4070, per Lampkin J, at para 29 ("What triggers recollection is not significant")
    R v Fliss, 2002 SCC 16 (CanLII), [2002] 1 SCR 535, per Binnie J("The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background") cf. R v Gwozdowski, 1972 CanLII 541 (ON CA), 2 OR 50, per Gale CJ - suggests you cannot use someone else's notes to refresh memory
  2. ↑ Template:CanmLIIRPC, per Quinn J, at para 13 ("it makes no difference that the memorandum is not written by [the witness], for it is not the memorandum that is the evidence but the recollection of the witness")
    R v KGB, 1998 CanLII 7125 (ON CA), 125 CCC (3d) 61, per Osborne JA, at paras 18 to 19 (“ [19] There is a danger in allowing the phrase "refreshing memory" to apply to those cases where the witness has no present memory, but is able to state that she accurately recorded a past event. In such cases, the witness has no present memory. The evidence, to the extent there is any, is the past record. When a witness refreshes her memory from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact, as happened here. “)
  3. ↑ Fliss, supra, per Binnie J
  4. ↑ Cornerstone, supra, at para 13
  5. ↑ R v Husbands (1973) 24 CRNS 188(*no CanLII links)
  6. ↑ R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191, per Kellock J
    R v Booth, 1984 CanLII 338 (BC CA), 15 CCC (3d) 237, per Anderson JA
  7. ↑ R v Gadzo, 2009 ONCJ 126 (CanLII), per Cuthbertson J
  8. ↑ R v Biondo, 2009 ONCJ 171 (CanLII), per Dechert J, at paras 31 to 32
  9. ↑ Cornerstone, supra, at para 13
    KGB, supra, at p. 69 (CCC)
    R v Bengert, 1980 CanLII 321 (BC CA), 53 CCC (2d) 481, per curiam, at para 151
  10. ↑ Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), {{{4}}}, per Quinn J, at para 16 ("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.")
  11. ↑ R v Mitchell, 2018 BCCA 52 (CanLII), per Fisher JA
  12. ↑ Mitchell, ibid.

Privileged Documents

See also: Privilege#Litigation Privilege

While as a general rule the document being used to revive the memory should be disclosed to the other side, this is not necessary in the case of a statement generated by the accused. So a statement made by the defence that is protected by solicitor-client privilege is not disclosable to the crown. If however the statement was purely created as a aide memoire then it may not be privileged. It is normally desirable for defence to make the purpose of the document clear on the document itself.[1]

Privilege in a document will remain in place even at the time that it is used in court to refresh a memory.[2]

Defence witness statements by non-accused persons are not generally protected by solicitor-client privilege.

  1. ↑ R v Fast, 2009 BCSC 1671 (CanLII), [2009] BCJ No 2421 (BCSC), per N Brown J, at paras 29 to 31
  2. ↑ R v Parker, [1985] OJ No 175 (CA)(*no CanLII links)

Reliability of Refreshed Memory

The credibility and reliability of refreshed testimony is determined by the trier-of-fact.[1]

Opposing counsel may cross-examine on the timing, reliability of the refreshing process as well as question whether the witness "had a present memory of events about which she testified."[2]

The court must be cautious when a witness is using documents to refresh their memory. Where the witness is relying too much on the notes for their testimony there is a likelihood that they are not testifying to their memory and are simply reciting their notes.[3]

Where officers collaborate on their notes that they refer to decreases the likelihood that the officer is actually refreshing their memory. This will inevitably go to the officer's credibility.[4]

See also: R v Violette, 2009 BCSC 503 (CanLII), per Romilly J

  1. ↑ Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), [2004] OJ No 4094, per Quinn J, at para 13 ("from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact")
    R v KGB, 1998 CanLII 7125 (ON CA), (1998), 109 OAC 138, 125 CCC (3d) 61, per Osborne JA
  2. ↑ Cornerstone, supra, at p. 13
    KGB, ibid., at p. 67 (CCC)
  3. ↑ e.g. R v Mattis, [1998] OJ No 4332 (Ont. Prov. Ct.)(*no CanLII links)
  4. ↑ Mattis, supra
    R v Green, [1998] OJ No 3598 (Ont. Gen. Div.)(*no CanLII links) , at para 24

Procedure

A trial judge may be flexible on the process to refresh memory.[1]

The procedure to refresh memory in the context of a prior recorded statement reduced to writing is as follows:[2]

  1. on direct examination, counsel should put the statement in the hands of the witness
  2. counsel should direct the witnesses attention to the part which contains the previous answer
  3. the witness should read it to himself
  4. the counsel may put questions to the witness referring to the previous answer. The witness may correct an error, agree or deny the contents of the document

The most important element is to ensure that the evidence is the recollection of the witness and not the past recollection found in the document.[3]

Exhausting Memory

Certain courts found that it is not necessary to exhaust the memory before permitting refreshing it.[4]

It does not matter how long before trial the witness used the document to refresh his memory. Such things can be cross-examined upon and will go to weight.[5]

Reading the Statement

Generally speaking, statements should not be read in the presence of any other witness.[6]

The record should be read by the witness silently. Counsel should not read the document.[7]

Item of Refresh is Not An Exhibit

The "thing" used to refresh memory should not be put in as an exhibit as it is not evidence.[8]

There is some division on whether the witness only needs to produce his notes when he requires them to be refreshed.[9]

  1. ↑ R v Wilks, 2005 MBCA 99 (CanLII), 201 CCC (3d) 11, per Philp and Freedman JA, at para 43
    R v Kemash, 2009 MBCA 15 (CanLII), 4 WWR 407, per MacInnes JA, at para 34
    R v Nelson, 2002 MBCA 53(*no CanLII links) at para 15
  2. ↑ R v Rowe, 2008 NLCA 3 (CanLII), 833 APR 38, per Rowe JA
    Wilks, supra, at para 43
  3. ↑ Kemash, supra, at para 34
    R v Violette, 2009 BCSC 503 (CanLII), per Romilly J, at para 8
  4. ↑ Violette, supra, at para 9
    R v Burns, [1979] BCJ No 1547 (Co. Ct.)(*no CanLII links)
  5. ↑ Cornerstone Co-operative Homes Inc v Spilchuk, 2004 CanLII 32328 (ONSC), [2004] OJ No 4094, per Quinn J, at para 13
  6. ↑ R v Husbands (1973) 24 CRNS 188(*no CanLII links)
  7. ↑ R v Rowe, 2008 NLCA 3 (CanLII), 833 APR 38, per Rowe JA, at para 17
    R v Laurin, 1902 CanLII 116 (QCCQ), 6 CCC 135 (KB), per Wurtele J
  8. ↑ Violette, supra R v Wilks, 2005 MBCA 99 (CanLII), 201 CCC (3d) 11, per Philp and Freedman JA, at para 19
    Cornerstone, supra, at para 13
  9. ↑ Cornerstone, supra at 13
    cf. R v Kerenko, Cohen and Stewart (1965) 51 WWR 53(*no CanLII links)

Using a Prior Transcript to Refresh Memory (Coffin Application)

Where a witness honestly forgets or cannot remember certain information that has been previously recorded under oath or in a written statement, counsel may show a copy of the previous statement to refresh the witness's memory.[1]

The ability to refresh the witnesses memory is at the discretion of the judge.[2]

A witness should not be permitted to refresh memory from a prior statement where the witnesses is merely being evasive.The preferred route would be through a s.9(2) Milgaard application.[3]

In such circumstances where the questioning on a prior statement is not for the purpose of discrediting or contracting the witness, which would engage s. 9 of the Canada Evidence Act, "the court has a discretion... to relax [the rule when] it is considered necessary in the interest of justice."[4]

  1. ↑ R v Booth, 1984 CanLII 338 (BC CA), 15 CCC (3d) 237, per Anderson JA
  2. ↑ Booth, ibid.
  3. ↑ Booth, ibid.
    R v Leigh, 1997 CanLII 3239 (BC SC), per Oppal J, at para 13
  4. ↑ R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191, at pp. 22-23

Extended Adjournments

Generally, it is considered normal practice for witnesses reviewing to contents of their statements priro to giving evidence.[1]

The judge has discretion to permit the witness to review their previous day's testimony. They should consider trial fairness and case management efficiency.[2]

Mere passage of time with no other identifiable reason will generally side against refresh as a speculative concern.[3]

See Also

  1. ↑ R v Muise (No.1), 1974 CanLII 1551 (NS CA), 22 CCC (2d) 487, per Macdonald JA
    R v PWM, 2018 PECA 24 (CanLII) per Mitchell JA ("...it is a normal practice of counsel for both Crown and defence to have adult witnesses review the contents of any statements they may have made prior to giving viva voce evidence at trial. There is nothing wrong with this practice...")
  2. ↑ R v Rutigliano, 2013 ONSC 2514 (CanLII), per Hill J, at para 13
    Van der Steen v. The Queen, 2016 TCC 205 (CanLII) per Sommerfeldt J
  3. ↑ Rutigliano, ibid.
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