R. v. Grix, 2013 ONCJ 758

Court File and Parties

Court File No.: Brampton 12-9769 Date: December 16, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — John Grix

Before: Justice Richard H.K. Schwarzl

Heard on: December 16, 2013 Reasons released on: December 16, 2013

Counsel:

• Mr. R. Levan for the Crown
• Mr. D. Buckman for the Accused

SCHWARZL, J.:

RULING RE "PAST RECOLLECTION RECORDED" APPLICATION

1.0: INTRODUCTION

1The Crown applies to admit into the evidence a videotaped statement made by the complainant Ms. Jacqueline Lawton to Peel Regional Police on or about the 5th of August, 2012 in relation to a number of counts for which Mr. John Grix is currently standing trial. The Crown seeks to admit the statement pursuant to the rule of past recollection recorded. The Accused opposes the application.

2.0: EVIDENTIARY BACKGROUND

2Ms. Lawton is currently being examined in-chief by Crown counsel. She commenced her evidence by giving details about the evening prior to these events, including that she and her friend, Tamika Kerr, were hanging out with each other. They decided to go out and at some point met Mr. Grix where he was working. The witness testified that Mr. Grix gave her a bank card to buy 24 bottles of Miller Genuine Draft, which she did and then went back to her apartment.

3She left some of the beer at Mr. Grix's work and told him to meet back at her apartment when he was done. The witness recalls leaving some beer in her car in the parking garage below ground at her apartment building. She recalled who was in the apartment, namely her friend Ms. Kerr, her friend's daughter Jade, and Jade's father although she could not recall if anyone else was there. She remembered Mr. Grix arriving, and that they "chilled together".

4She said that an argument broke out between her and Mr. Grix. He was upset because Ms. Kerr appeared to be drinking more than her share of beer. At this point in her testimony Ms. Lawton said, "A lot of this is groggy to me because of my drinking vodka and taking medication". She said she doesn't remember all of it, just bits and pieces.

5After getting into the argument about her friend drinking more than her share of beer, the witness said the next thing she remembered was that she and Mr. Grix were "nitpicking". She was teasing Mr. Grix about his manhood and it got out of hand. She said there are lots of blurred memories after that. She remembers taking the elevator to the parking garage where her car was. She recalled Mr. Grix said he wanted to leave, but wanted to first get his beer from her car. She recalled going with him to the parking garage for that purpose.

6She testified he threatened to smash the windshield if she did not give him her keys, which she refused to give. She remembered grabbing some beer from the trunk. She then said she was not sure what order things happened in. She said she thinks she took four beers from a six pack carton that was within the larger case.

7She testified she recalled being a "smartass". She said she was being a bit of a jerk in a fun way. She said, "Then an ordeal took place", but cannot describe it in detail. She recalls a windshield getting smashed and that she hid behind a support column in the parking garage. She remembered specifically that the trunk was open so that Mr. Grix could get his beer. She said, "I think he was calling me out to show myself. I'm not too sure". She heard the windshield smash. There was a broken beer bottle on the windshield. She said Mr. Grix smashed the windshield, so she has a specific memory of that happening.

8She next remembers "freaking out" and going to the elevator. The next thing she remembered "was a neighbour saying the elevator was taped with police tape", so she then went to the lobby and found the police there. She got changed and went to the station to make a report. She acknowledged the report was videotaped. The report was about the fight she and Mr. Grix had. She had some pictures taken at the station. She said none of the injuries shown on the pictures were caused before she got into the garage with Mr. Grix. She said that "something occurred down there". She testified she went alone with the accused into the parking garage.

9She testified further that she had a self-inflicted cut to her left wrist, which she cut by glass. That happened in the underground park. She was reluctant to say why she did it. She testified her memory is chaotic. She said, "I remember and I don't remember". She testified that she gave a statement to the police within two to three hours of the events and that her memory at the time was pretty good because it was fresh. She testified that she told the truth to the police and had no reason to lie. That is her evidence.

3.0: APPLICABLE LEGAL PRINCIPLES

10The basic rule regarding past recollection recorded is set out in Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, c. 28, § 744 et seq. which provides:

1. The past recollection must have been recorded in some reliable way;

2. At the time it must have been sufficiently fresh and vivid to be probably accurate;

3. 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. The original record itself must be used if it is procurable.

11This rule requires the witness to affirm that he "knew it to be true at the time", and the original record itself must be used if procurable.

12If this rule applies, a writing or memorandum including audio or videotape previously made by a witness becomes the witness' evidence. If admitted by the court, the item is filed as an exhibit and may be used by the court as the evidence of the witness for the truth of its contents. The court must always assess the reliability of such evidence prior to making a final determination of admissibility. For example, see R. v. Alldred, [2007] O.J. No. 3470 (C.A.)

13In R. v. Richardson, 2003 CanLII 3896 (ON CA), [2003] O.J. No. 3215 the Ontario Court of Appeal set out the following criteria for admissibility under the doctrine of past recollection recorded:

1. Reliable record: The past recollections must be recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.

2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.

4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

14This rule of admissibility of evidence is only available when the witness has a genuine loss or absence of memory.

15In R. v. Chretien [2009] O.J. No. 810 (S.C.J.) at ¶ 10 to 23, the court held that in order to rely on the past recollection recorded rule, the court must be satisfied the witness' loss of memory is genuine. If the court finds that the loss of memory is not genuine, then the rule cannot be used, but the statement may be otherwise admissible pursuant to other doctrines including a principled approach to hearsay.

4.0: ANALYSIS

16In the present case, Mr. Levan on behalf of the Crown submits that the four criteria set out in Richardson have been satisfied. First, that there is a reliable record which is reasonably accurate, being the videotaped statement made contemporaneously with the events. Secondly, the Crown submits that the record was made while the matters were still sufficiently fresh in the memory of the witness so as to be likely accurate. Third, the Crown submits that when Ms. Lawton was testifying she had no memory of the recorded events. Fourth, that the witness has vouched for the accuracy, or the truthfulness, of the assertions contained in the recording.

17On behalf of Mr. Grix, Mr. Buckman does not quarrel with the reliability of the record, the timeliness of its making or her present vouching for its truth. Where Mr. Buckman has difficulty is that the third component of the Richardson test, that is to say an absence of memory, has not been satisfied because here the witness has said she in fact does have some memory.

18Indeed, Ms. Lawton went further and said she doesn't recall some things and, importantly, does not wish to recall others. There is a difference. Absence of memory is not the same thing as a desire not to discuss it or to turn one's mind to it. Willful blindness does not count as an absence of memory as far as I admissibility pursuant to the rule of past recollection recorded.

19I am not at all satisfied that there is a genuine loss or absence of memory by this particular witness. She has, in my respectful view at this stage of her evidence, a "selective memory". She had surprisingly accurate and detailed evidence up to the point where she did not wish to discuss much of what happened in the garage. She gave surprisingly detailed evidence about what happened to the windshield. She recalls with clarity taking the elevator, getting changed, going to the police station and giving a statement.

20It is, in my view, a matter of personal convenience for Ms. Lawton that she does not appear to wish to recall what happened between the time the windshield broke and the time she left the garage.

21I commend the prosecution for its attempt to apply the rule of past recollection recorded with this witness, but I am not satisfied that there is an actual loss of memory, and if there is a memory loss, I am not at all satisfied that it was genuine.

22Accordingly, the application to adduce the police statement given by Ms. Lawton as past recollection recorded is dismissed.