Past Recollection Recorded: Difference between revisions
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==General Principles== | ==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: | 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: | ||
<ref> | <ref> | ||
adopted in R v Fliss [http://canlii.ca/t/51vj 2002 SCC 16] (CanLII) at para 63<br> | adopted in R v Fliss [http://canlii.ca/t/51vj 2002 SCC 16] (CanLII){{perSCC|Binnie J}} at para 63<br> | ||
see also: R v Pilarinos, [2002] BCJ No. 1153 (BCSC), [http://canlii.ca/t/5kdt 2002 BCSC 798] (CanLII) | see also: R v Pilarinos, [2002] BCJ No. 1153 (BCSC), [http://canlii.ca/t/5kdt 2002 BCSC 798] (CanLII){{perBCSC|Bennett J}} at paras 7 – 12<br> | ||
R v Richardson, [http://canlii.ca/t/613r 2003 CanLII 3896] (ON CA)<Br> | R v Richardson, [http://canlii.ca/t/613r 2003 CanLII 3896] (ON CA){{perONCA|O'Connor ACJ}}<Br> | ||
R v Meddoui, [http://canlii.ca/t/1nnx6 1990 CanLII 2592] (AB CA)<br> | R v Meddoui, [http://canlii.ca/t/1nnx6 1990 CanLII 2592] (AB CA){{perABCA|Kerans JA}} (2:1)<br> | ||
R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII)<br> | R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII){{perMBCA|Philp and Freedman JJA}}<br> | ||
R v McBride [http://canlii.ca/t/1f9c5 1999 CanLII 2317] (ON CA), (1999), 118 O.A.C. 139, 133 CCC (3d) 527 at 530<br> | R v McBride [http://canlii.ca/t/1f9c5 1999 CanLII 2317] (ON CA), (1999), 118 O.A.C. 139, 133 CCC (3d) 527{{TheCourt}} at 530<br> | ||
R v Eisenhauer [http://canlii.ca/t/1h32f 1998 CanLII 1901] (NS CA), (1998), 165 N.S.R. (2d) 81, 123 CCC (3d) 37 (C.A.) at 74<br> | R v Eisenhauer [http://canlii.ca/t/1h32f 1998 CanLII 1901] (NS CA), (1998), 165 N.S.R. (2d) 81, 123 CCC (3d) 37 (C.A.){{perNSCA|Cromwell JA}} at 74<br> | ||
c.f. [[Refreshing Memory|present memory revived]] | c.f. [[Refreshing Memory|present memory revived]] | ||
</ref> | </ref> | ||
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# '''Absence of Memory''': the witness must have no memory of the recorded events. | # '''Absence of Memory''': the witness must have no memory of the recorded events. | ||
In practice counsel should establish:<ref> | In practice, counsel should establish:<ref> | ||
R v McCarroll, [http://canlii.ca/t/217d7 2008 ONCA 715] (CanLII) - sets out four of the key criteria</ref> | R v McCarroll, [http://canlii.ca/t/217d7 2008 ONCA 715] (CanLII){{perONCA|Epstein JA}} - sets out four of the key criteria</ref> | ||
# that the witnesses memory is exhausted and cannot answer the question; | # that the witnesses memory is exhausted and cannot answer the question; | ||
# that a record was made by the witness or on behalf of the witness; | # that a record was made by the witness or on behalf of the witness; | ||
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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".<ref> | 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".<ref> | ||
R v Bettgert, [http://canlii.ca/t/23lwp 1980 CanLII 321] (BCCA) at p. 523 to 524<Br> | R v Bettgert, [http://canlii.ca/t/23lwp 1980 CanLII 321] (BCCA){{TheCourt}} at p. 523 to 524<Br> | ||
R v Pickunyk, [http://canlii.ca/t/gk8k0 2012 ABPC 318] (CanLII) at paras 18 to 23<br> | R v Pickunyk, [http://canlii.ca/t/gk8k0 2012 ABPC 318] (CanLII){{perABPC|Allen J}} at paras 18 to 23<br> | ||
</ref> These additional requirements only apply where the doctrine of "past recollection recorded" is being used to admit the records into evidence.<ref> | </ref> These additional requirements only apply where the doctrine of "past recollection recorded" is being used to admit the records into evidence.<ref> | ||
Pickunyk{{ibid}} at para 19<br> | Pickunyk{{ibid}} at para 19<br> | ||
R v Shergill (1998), 13 C.R. (5th) 160 (Ont. Gen. Div.){{NOCANLII}} | R v Shergill (1998), 13 C.R. (5th) 160 (Ont. Gen. Div.){{NOCANLII}}{{perONSC|Ferguson J}}<br> | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
e.g. Pickunyk{{supra}} at para 28<br> | e.g. Pickunyk{{supra}} at para 28<br> | ||
R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII) at paras 41 to 42<br> | R v Wilks, [http://canlii.ca/t/1lph6 2005 MBCA 99] (CanLII){{perMBCA|Philp and Freedman JJA}} at paras 41 to 42<br> | ||
</ref> | </ref> | ||
Revision as of 09:50, 26 November 2018
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]
- Reliable recording: the past recollection must have been recorded in some reliable way;
- Timeliness: at the time the record was created, the recollection must have been sufficiently fresh and vivid to be probably accurate;
- 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
- Absence of Memory: the witness must have no memory of the recorded events.
In practice, counsel should establish:[2]
- that the witnesses memory is exhausted and cannot answer the question;
- that a record was made by the witness or on behalf of the witness;
- the record was made near the time that the information was learned;
- the information was fresh in their mind at the time;
- 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.
- ↑
adopted in R v Fliss 2002 SCC 16 (CanLII), per Binnie J at para 63
see also: R v Pilarinos, [2002] BCJ No. 1153 (BCSC), 2002 BCSC 798 (CanLII), per Bennett J at paras 7 – 12
R v Richardson, 2003 CanLII 3896 (ON CA), per O'Connor ACJ
R v Meddoui, 1990 CanLII 2592 (AB CA), per Kerans JA (2:1)
R v Wilks, 2005 MBCA 99 (CanLII), per Philp and Freedman JJA
R v McBride 1999 CanLII 2317 (ON CA), (1999), 118 O.A.C. 139, 133 CCC (3d) 527, per curiam at 530
R v Eisenhauer 1998 CanLII 1901 (NS CA), (1998), 165 N.S.R. (2d) 81, 123 CCC (3d) 37 (C.A.), per Cromwell JA at 74
c.f. present memory revived - ↑ R v McCarroll, 2008 ONCA 715 (CanLII), per Epstein JA - sets out four of the key criteria
As Compared with Present Memory Revived
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]
- ↑
R v Bettgert, 1980 CanLII 321 (BCCA), per curiam at p. 523 to 524
R v Pickunyk, 2012 ABPC 318 (CanLII), per Allen J at paras 18 to 23
- ↑
Pickunyk, ibid. at para 19
R v Shergill (1998), 13 C.R. (5th) 160 (Ont. Gen. Div.)(*no CanLII links) , per Ferguson J
- ↑
e.g. Pickunyk, supra at para 28
R v Wilks, 2005 MBCA 99 (CanLII), per Philp and Freedman JJA at paras 41 to 42