ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-5042
DATE: 2014/05/28
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
M. S.
Applicant
Marie Dufort, for the Respondent Crown
Anne London Weinstein, for the Applicant
HEARD: May 20, 2014 (at Ottawa)
RULING ON MOTION TO ADMIT
PAST RECOLLECTION RECORDED EVIDENCE
LINHARES DE SOUSA J.
[1] Crown counsel brought a motion for the admission of evidence of P. T. in the nature of past recollection recorded. In particular, Crown counsel requests that the following passage of an e-mail statement sent to Detective Denis Chevalier by Ms. T. on May 7, 2011 be admitted into evidence:
… Somehow, M. and I ended up in a car, what we believed was an underground taxi. From what I remember, it was a four door sedan type large car, and dark in colour. The driver was African American, had cornrows and was overweight. I do not remember what the events were leading up to this, but I do remember feeling as though I was in danger and that I had to leave the vehicle. I remember feeling creeped out and that if I did not leave things would end up worse. I do not remember where M. was at this time. I believe I was in the front seat. I then left the vehicle and I remember running.
[2] After hearing the arguments of Crown and Defence counsel on this motion, I ruled that the evidence could be admitted as the past recollection recorded of the witness. I indicated at that time that more detailed reasons on the ruling would follow. What follows are those reasons.
[3] In essence, the reason for the special legal test concerning the admission of past recollection recorded evidence is because, given the total lack of memory by the witness, it is hearsay evidence. Like any hearsay evidence, it ought to be admitted with great caution and after careful consideration by the Court.
[4] Ms. T. was a witness at the trial called on behalf of the Crown. She was available to be cross-examined and was cross-examined by Defence counsel on all of her evidence.
[5] Past recollection recorded evidence is admissible if the stringent test to its admissibility is met.
[6] The legal test to be applied for the admission of past recollection recorded evidence was not disputed by counsel. Relying on Wigmore on Evidence, the Supreme Court of Canada enunciated the factors of the test in its decision R. v. Fliss, 2002 SCC 16, para. 63, summarized as follows:
(1) The past recollection must have been recorded in some reliable way.
(2) At that time the record was made or reviewed by the witness, the memory must have been sufficiently fresh and vivid to be probably accurate.
(3) The witness, at the time of testifying must be able to assert that the record accurately represented his or her knowledge and recollection at the time, or in other words, that the witness knew it to be true.
(4) The original record, itself must be used, if it is procurable.
[7] The Ontario Court of Appeal in the case of R. v. Richardson, 2003 3896 (ON CA) more recently confirmed the above four-pronged legal test in the following way at para. 24:
Reliable record: The past recollection must have been 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.
Timelines: 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.
Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
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.
[8] In applying this legal test to the evidence in question, it is clear that the test is met on all four requirements.
[9] The evidence relating to Ms. T.’s testimony and the portion of her police statement in question indicated the following. Ms. T. testified that she was drunk on the night in question. On leaving the Lobby bar, she remembered getting into a car with one of the complainants in this trial, M. D., and going somewhere in the car. She then recalled being outside of the car on a residential street by herself. Ms. T. had no memory of the person who was driving the car, of how long she was in the car before leaving it, of where she was sitting and where Ms. D. was sitting in the car, of anything that happened in the car or of how she was feeling while she was in the car and of why she left the car by herself leaving Ms. D. in the car.
[10] Once the police got involved in the incident, Ms. T. was asked by Detective Chevalier to complete a statement and to send it to him. This she did by way of the e-mail dated May 7, 2011, the identified portion of which Crown counsel is seeking to have admitted. The original of the e-mail police statement is available.
[11] Ms. T. reviewed the whole of this e-mail statement in preparation for her testimony at trial and previously for the Preliminary Hearing held in this case but testified that she still has no memory of what occurred during the period of time she spent in the car. In fact, the content of the statement was more than she could currently remember about the event.
[12] Ms. T. identified the e-mail police statement as her own. Ms. T. certainly recalled preparing the e-mail statement on May 7, 2011 and sending it to Detective Chevalier. She prepared the statement by herself and was alone when she prepared it and sent it.
[13] The e-mail statement was sent some three weeks after the incident. In the intervening time Ms. T. had had one contact with Ms. D. and her friend Mr. O’ and had been made aware of Ms. D.’s allegations of what had happened to her. There is no question that Ms. T. was feeling bad for having left her friend in the car by herself on the night in question.
[14] With respect to this part of the evidence, Defence counsel argues that in that three week period that passed since the incident and the making of Ms. T.’s e-mail police statement, there was a potential for the tainting of Ms. T.’s statement because of her communication with Ms. D. and Mr. O’.
[15] There is no evidence that Ms. T. relied on anything told to her by these two individuals in the preparation of her e-mail police statement in support of a finding of a tainted statement. In my view a mere potential for such tainting without any further evidence is insufficient proof for coming to the conclusion that her e-mail police statement may have been tainted.
[16] Nor do I find the approximate three weeks that had elapsed between the incident and the making and sending of the e-mail police statement fatal to Crown counsel’s motion. It is clearly desirable to have such a statement made as close to the event as possible. However, in my view, three weeks is a period of time about which one can conclude that the statement was made “within a reasonable time, while the event was sufficiently fresh” in the mind of Ms. T., “to be vivid and likely accurate.”
[17] Finally, it was the testimony of Ms. T. that, while she had no current memory of the events of that portion of her e-mail police statement, her memory of the events on May 7, 2011, when she created and sent the e-mail police statement would have been clearer than it is now. Ms. T. also gave evidence that when she prepared and sent the e-mail police statement she did so with the best of her memory at that time and that what she wrote she believed to be the truth and that she would rely on the statement. Ms. T. agreed in cross-examination that the alcohol she consumed on the evening in question could have affected her memory of the events of the evening.
[18] For all of these reasons, I conclude that Crown counsel has met the onus regarding the admissibility of the past recollection recorded evidence of Ms. T. and rule that the identified portion of her e-mail police statement is admissible.
M. Linhares de Sousa J.
Released: May 28, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
M.S.
Applicant
RULING ON MOTION TO ADMIT PAST RECOLLECTION RECORDED EVIDENCE
M. Linhares de Sousa J.
Released: May 28, 2014