View source for Refreshing Memory

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==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.<ref>
Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1999) at para. 16.77<br>
R v K.G.B. (1998), [http://canlii.ca/t/6gwj 1998 CanLII 7125] (ON CA){{perONCA| JA}}<br>
R. v. Bengert et al (No. 5) (1978), [1979] 1 W.W.R. 472, (BCSC), aff’d [http://canlii.ca/t/23lwp 1980 CanLII 321] (BC CA), 53 CCC (2d) 481{{perBCCA| JA}} at 521-24 leave ref'd [1980] 2 S.C.R. v.<br>
UK: Henry v. Lee (1814), 2 Chitty 124 (H.L.) (...[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])<br>
</ref>

The key elements to the use of the doctrine of present memory revived is:<ref>
e.g. see Stone v Ellerman, [http://canlii.ca/t/2438b 2009 BCCA 294] (CanLII){{perBCCA| JA}} at para 53 onward for general discussion per Smith J. in dissent. Majority decided on issue unrelated to rules of memory refresh.
</ref>
# an independent memory of events; 
# the inability to recall the memory; and
# the "thing" is capable of "sparking" or "jogging" the independent memory

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.<ref>
Stone v Ellerman{{supra}} at para 56<br>
</ref>

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.<ref> eg. R v KGB (1998), 109 O.A.C. 138, 125 CCC (3d) 61, [http://canlii.ca/t/6gwj 1998 CanLII 7125] (ON CA){{perONCA| JA}} at 18
</ref> 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.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| J}} at para 13<br>
See also R v Gadzo, [http://canlii.ca/t/22z8l 2009 ONCJ 126] (CanLII){{perONCJ| J}}</ref>

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."<ref>
Fleming v Toronto R.W. Co, [1911] O.J. No. 40{{NOCANLII}}, MacLaren J.A.,  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, [http://canlii.ca/t/1tsqc 1913 CanLII 3] (SCC){{perSCC| J}}
</ref>

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".<ref>
Paciocco and Stuesser, The Law of Evidence, Fourth Edition, (2005, Irwin Law Inc.), at page 377<br>
R v Biondo, [http://canlii.ca/t/237sk 2009 ONCJ 171] (CanLII){{perONCJ| J}}, at para 16<br>
</ref>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".<ref>
The Law of Evidence, Fourth Edition, supra. at page 383<br>
Biondo at para 21<br>
</ref>

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===Distinction with Past Recollection Recorded===
Present memory revived is the method of "jogging" a memory and bring it back into the witnesses 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. <ref>
R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII){{perMBCA| JA}}, at paras 18, 19<br>
Cornerstone at para 13<br>
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'")
</ref>

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

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===Timing of Refresh===
There's no need for the documents be contemporaneous with the events it documents.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| J}} at para 13
R v K.G.B. (1998), 109 O.A.C. 138, 125 CCC (3d) 61, [http://canlii.ca/t/6gwj 1998 CanLII 7125] (ON CA){{perONCA| JA}} at p. 69 [CCC]<br>
</ref>

It does not make a difference how long before trial the refreshing occurs.<ref>
Cornerstone{{supra}} and 13
</ref>
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===Opposing View on Memory Refresh===
Certain courts have interpreted the requirements of memory refresh as including the additional requirements that:<ref>
e.g. see Phipson on Evidence, 11th ed. (1970), pp. 632-3, art. 1528<br>
Paciocco and Steusser, "The Law Of Evidence", (2d Ed) at page 256<Br>
</ref>
* the record be made contemporaneous to the events that it records<ref>
e.g. R v Gwozdowski, [http://canlii.ca/t/g19r8 1972 CanLII 541] (ON CA){{perONCA| JA}}, 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; ")</ref>
* 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;<REf>
see Gwozdowski{{ibid}} </ref>
* the record has not been subject to any edits since the time that it was made.

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==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.<ref> eg. R v K.G.B. (1998), 109 O.A.C. 138, 125 CCC (3d) 61, [http://canlii.ca/t/6gwj 1998 CanLII 7125] (ON CA){{perONCA| JA}} at 18<br>
R v Colangelo, [http://canlii.ca/t/1tf41 2007 ONCJ 489] (CanLII), [2007] O.J. No 4070{{perONCJ| J}} at para 29 ("What triggers recollection is not significant")<br>
c.f. R v Gwozdowski, [http://canlii.ca/t/g19r8 1972 CanLII 541] (ON CA){{perONCA| JA}} - suggests you cannot use someone else's notes to refresh memory
</ref>

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.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| 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")<br>
R v B. (K.G.) [http://canlii.ca/t/6gwj 1998 CanLII 7125] (ON CA), (1998), 125 CCC (3d) 61{{perONCA| JA}}, at paras 18 to 19<br>
</ref> 

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.<Ref>
R v Fliss, [http://canlii.ca/t/51vj 2002 SCC 16] (CanLII), 161 CCC (3d) 225{{perSCC| J}}
</ref>

Memory can be refreshed by any document. It does not matter weather than witness was the author.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| J}} at para 13
</ref>

There is nothing necessarily wrong with officers reading the statements of other witnesses as long as no coaching is involved.<Ref>R v Husbands (1973) 24 CRNS 188{{NOCANLII}}</ref>

Traditionally, counsel can refresh memory of a witness who is forgetful due to the span of time or "timidity".<ref>
R v Coffin, [http://canlii.ca/t/22tqn 1956 CanLII 94] (SCC), [1956] SCR 191{{perSCC| J}} per Kellock J.<br>
R v Booth, [http://canlii.ca/t/2165c 1984 CanLII 338] (BC CA){{perBCCA| JA}}<br>
</ref>

An officer does not have to maintain possession or control over his notes that he uses to refresh his memory.<ref>
R v Gadzo, [http://canlii.ca/t/22z8l 2009 ONCJ 126] (CanLII){{perONCJ| J}}
</ref>

Even notes that are not accurate can be used as an aide-memoire.<ref>
R v Biondo, [http://canlii.ca/t/237sk 2009 ONCJ 171] (CanLII){{perONCJ| J}} at para 31 to 32<br>
</ref>

'''Timing of the Creation of Document'''<br>
The document need not have been made contemporaneously with the facts recorded in it.<ref>
Cornerstone at para 13<br>
B(KG) at p. 69(CCC)<br>
R v Bengert, [http://canlii.ca/t/23lwp 1980 CanLII 321] (BC CA){{perBCCA| JA}} at para 151<br>
</ref>

'''Requirement to Produce'''<br>
The record being used to refresh a witness's memory must be produced to the other side. 

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.<Ref>
R v Mitchell, [http://canlii.ca/t/hqcp0 2018 BCCA 52] (CanLII){{perBCCA| JA}} per Fisher JA <br>
</ref>
Using interview notes for memory refresh will constitute a waiver of litigation privilege.<Ref>
Mitchell{{ibid}} 
</ref>

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===Privileged Documents===
{{seealso|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.<Ref>R v Fast, [http://canlii.ca/t/26wr0 2009 BCSC 1671] (CanLII), [2009] BCJ No 2421 (BCSC){{perBCSC| J}} at para 29-31</ref> 

Privilege in a document will remain in place even at the time that it is used in court to refresh a memory.<Ref>
R v Parker [1985] OJ No 175 (CA){{NOCANLII}}</ref>

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

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==Reliability of Refreshed Memory==
The credibility and reliability of refreshed testimony is determined by the trier-of-fact.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| 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")<Br>
B(KG)<Br>
</ref>

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."<ref>
Cornerstone at p. 13<Br>
B(KG){{ibid}} at p. 67 (CCC)
</ref>

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.<ref>e.g. R v Mattis [1998] O.J. No 4332 (Ont. Prov. Ct.){{NOCANLII}}</ref>

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.<ref>
Mattis{{supra}}<br>
R v Green [1998] O.J. No. 3598 (Ont. Gen. Div.){{NOCANLII}} at para 24</ref> 

See also: R v Violette, [http://canlii.ca/t/25rhx 2009 BCSC 503] (CanLII){{perBCSC| J}}

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==Procedure==
The procedure to refresh memory in the context of a prior recorded statement reduced to writing is as follows:<ref>
R v Rowe, [http://canlii.ca/t/1vd9l 2008 NLCA 3] (CanLII){{perNLCA| JA}}</ref>
# on direct examination, counsel should put the statement in the hands of the witness
# counsel should direct the witnesses attention to the part which contains the previous answer
# the witness should read it to himself
# 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.<ref>
R v Kemash, [http://canlii.ca/t/22nhd 2009 MBCA 15] (CanLII){{perMBCA| JA}} at para 34<br>
R v Violette, [http://canlii.ca/t/25rhx 2009 BCSC 503] (CanLII){{perBCSC| J}} at para 8<br>
</ref>

Certain courts found that it is not necessary to exhaust the memory before permitting refreshing it.<Ref>
Violette at para 9<br>
R v Burns, [1979] BCJ No. 1547 (Co. Ct.){{NOCANLII}}
</ref>

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.<ref>
Cornerstone Co-operative Homes Inc. v Spilchuk, [http://canlii.ca/t/1hz7n 2004 CanLII 32328] (ON SC), [2004] O.J. No. 4094{{perONSC| J}} at para 13</ref>

Generally speaking, statements should not be read in the presence of the any other witness.<Ref>R v Husbands (1973) 24 CRNS 188{{NOCANLII}}</ref>

The "thing" used to refresh memory should not be put in as an exhibit as it is not evidence.<ref>
R v Violette{{supra}}
R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII){{perMBCA| JA}} at para 19<br>
Cornerstone{{supra}} at para 13<br>
</ref>

There is some division on whether the witness only needs to produce his notes when he requires them to be refreshed.<ref>
Cornerstone{{supra}} at 13<br>
c.f. R v Kerenko, Cohen and Stewart (1965) 51 W.W.R. 53{{NOCANLII}}<br>
</ref>
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==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.<Ref>
R v Booth, [http://canlii.ca/t/2165c 1984 CanLII 338] (BC CA){{perBCCA| JA}}
</ref>

The ability to refresh the witnesses memory is at the discretion of the judge.<ref>
Booth{{ibid}}
</ref> 

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.<ref>
Booth{{ibid}}<br>
R v Leigh, [http://canlii.ca/t/1f4cx 1997 CanLII 3239] (BC SC){{perBCSC| J}} at para 13
</ref>

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."<ref>
R v Coffin, [http://canlii.ca/t/22tqn 1956 CanLII 94] (SCC), [1956] SCR 191{{perSCC| J}} at pp. 22-23</ref>

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==See Also==
* [[Past Recollection Recorded]]