COURT FILE NO.: CR-22-25
DATE: 2024-08-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
J. Cavanagh, M. Purcell, and T. Schuck for the Applicant
- and -
Archie McKay
R. Amy and A. Anderson for the Respondent
Accused
HEARD: November 17, 2023, August 8 & 12, 2024 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons on Application
By Crown to Admit Witnesses’ Out of Court Statements into Evidence Under Past Recollection Recorded Exception to Hearsay Rule
INTRODUCTION
[1] The Crown applies for the admission of three out of court statements, or alternatively portions thereof, made by three Crown witnesses under the past recollection recorded exception to the rule against admitting hearsay evidence. The three statements are as follows:
[2] The O.P.P. interview report of Chief Donny Morrison, dated May 7, 2019 (Exhibit F);
[3] The Sunnybrook Health Sciences Centre Admission Note of Dr. Margarita Elloso, dated May 21, 2019, 10:53 A.M., including amended admission notes dated May 21, 2019, 3:01 P.M. and 3:41 P.M. (Exhibit S); and
[4] The Sunnybrook Health Sciences Centre Psychiatry Consult Note - Final of Dr. Jeffrey Wieskopf, dated May 29, 2019, 8:17 A.M. (Exhibit R).
BACKGROUND
[5] Archie McKay (the “accused”) stands charged with five counts of first-degree murder arising from an early morning fire that destroyed a residence at 854 Macheetao Road, in the First Nation community of Kitchenuhmaykoosib (“KI”), on May 2, 2019 (the “fire”).
[6] Tragically, Geraldine Chapman and four young children died in the fire. The accused was the biological father of one of the children that died. The other children had been adopted by Ms. Chapman and lived with her at 854 Macheetao Road.
[7] The accused, who was Ms. Chapman’s years-long, on and off common law partner, also lived at 854 Macheetao Road. However, the accused’s residence at the home during this relationship was intermittent and depended on the status of their relationship, and the accused’s sobriety, at any given time.
[8] The Crown’s primary theory of the case is that the accused deliberately set fire to the residence at 854 Macheetao Road with the requisite intent for murder, and that he did so in the course of criminally harassing, or attempting to criminally harass, Ms. Chapman. The evidence supporting the Crown’s theory of the case is circumstantial, and includes, but is not limited to, the following:
i. The accused being proximate to 854 Macheetao Road just prior to the start of the fire in an intoxicated and belligerent state;
ii. The accused being seen to have a significant burn to the back of his right hand, along with other minor burns, following the fire on May 2, 2019; and
iii. The accused providing various, disparate accounts as to his whereabouts at the time of, and immediately following, the start of the fire, and as to how he sustained the burns he was seen to have following the fire on May 2, 2019.
[9] The primary issues at trial will be identity and intent.
Chief Donny Morris
[10] Chief Morris has been the Chief of KI for approximately 30 years. He received a telephone call advising him of the fire between approximately 5:15 – 5:30 A.M. on May 2, 2019, and attended the scene of the fire shortly thereafter. Chief Morris made certain observations while at the scene of the fire and provided a statement (Exhibit F) to the police on May 7, 2019, five days after the fire.
[11] Chief Morris reviewed his statement several times prior to giving evidence at trial. He testified that he had a very difficult time “remembering [his] statement,” as his mind was focused on two individuals and the house which was engulfed in flames.
[12] Upon arriving at the scene of the fire, Chief Morris saw that the police were present. He testified that he also saw Creighton Beardy and Wayne Moskotaywenene when he arrived. Chief Morris testified that he saw Wayne Moskotaywenene “bent over” at the corner of Lucille’s store, a small convenience store located close to 854 Macheetao Road and operated by Ms. Chapman. He also testified that he saw Creighton Beardy “walking by”, carrying a pair of runners and saying, “here I have these runners”. Chief Morris further testified that he had no recollection of who else he may have seen or talked to at the scene of the fire.
[13] During the voir dire on the Crown’s past recollection recorded application, Chief Morris recalled giving his statement to the police on May 7, 2019; however, he had no recollection of what was in the statement. He testified that his statement reflected his “honest responses” to the questions put to him by police.
[14] On cross examination during the voir dire, Chief Morris acknowledged that, as Chief, he was extremely busy and upset during the five days between the fire and the giving of his statement on May 7, 2019.
Dr. Margarita Elloso
[15] Dr. Elloso is a plastic and reconstructive burn surgeon currently practicing at Hamilton General Hospital. On May 21, 2019, Dr. Elloso was completing a yearlong clinical fellowship at the Sunnybrook Health Sciences Centre’s (“Sunnybrook”) burn unit. In this capacity, Dr. Elloso’s duties included seeing patients upon their admission to Sunnybrook’s burn unit, recording certain information in the patient’s hospital chart, conducting initial physical examinations, and directing the initial treatment and management of patients.
[16] On direct examination, Dr. Elloso was shown Exhibit S. She testified that it was her practice to record the information contained in these admission notes as soon as a patient entered the burn unit. Dr. Elloso also testified that it was her practice to go outside the burn treatment room and type her notes into the patient’s digital chart immediately after seeing the patient, pending any emergencies. Dr. Elloso had no present independent recollection of the accused’s admission to the Sunnybrook burn unit on May 21, 2019.
[17] During direct examination on the voir dire, Dr. Elloso testified that it is a physician’s duty when recording this initial information to be as accurate as possible, as other medical staff and doctors rely on these charts to treat patients in the future. Dr. Elloso testified that was her personal practice at the time to be as accurate as possible when recording information in a patient’s admissions note.
[18] Upon reviewing Exhibit S, Dr. Elloso testified that the section entitled “History of Present Illness (“HPI”), which including the entry “sustained flame burns on R hand after his house caught fire”, was completed by her as accurately as possible based on information received directly from the patient. She further testified that the entry “Burn Etiology: Flame” was made by her based on the previously recorded information from the HPI section of the note. Dr. Elloso testified that when gathering information from a patient to complete the HPI section, it was her practice to use open ended questions which allowed the patient to “tell their story”.
[19] Dr. Elloso testified that the information recorded in Exhibit S under the section entitled “Physical Assessment”, including “awake, oriented (-) agitation, (-) delirium” and “deep partial thickness burn on R hand”, was recorded by her as a result of her physical examination of the patient.
[20] Dr. Elloso confirmed that she signed Exhibit S at 10:53 A.M. on May 21, 2019, and testified that she completed the admission note approximately 45 minutes after assessing and speaking with the patient. Page 3 of Exhibit S is a standard “burn diagram” illustrating a full thickness burn on the back of the patient’s right hand. Dr. Elloso testified that this diagram was completed by her and saved to the patient’s hospital chart at 10:54 A.M. May 21, 2019.
[21] When referred to pages 5 and 6 of Exhibit S, Dr. Elloso testified that she amended, or added to, the initial admission notes at 3:01 and 3:41 P.M. on May 21, 2019. Dr. Elloso testified that this is “quite common,” as it is her usual practice to check and review the information on the admissions note with the patient after they have been transferred to a hospital room, to ensure accuracy.
[22] When Dr. Elloso compared the original and amended admissions notes found in Exhibit S, she concluded that the patient had given further details as to how he had been burned. Dr. Elloso testified that in the HPI section of the amended admissions note, the additional entries, “after falling onto the embers of his house” and “he initially neglected to have his burn wound treated until he was seen at a local clinic after a week”, were recorded by her based on new information received directly from the patient. Dr. Elloso had no independent recollection of her latter interactions with the patient.
[23] On cross-examination during the voir dire, Dr. Elloso agreed that the word “embers”, as recorded in the HPI section of the amended admissions note, did not come verbatim from the patient. This was her word choice based on what she was told by the patient. On re-examination, Dr. Elloso testified that her use of the word “embers” could have meant burning wood or ash from the burnt house. She further agreed on cross-examination that the entry on the amended admissions note reading “he initially neglected to have his burn wound treated until he was seen at a local clinic after a week” was not a verbatim quote from the patient, but rather a summary of what the patient told her.
Dr. Jeffrey Wieskopf
[24] Dr. Wieskopf has been licensed to practice psychiatry in Ontario since July 2002. On May 29, 2019, Dr. Wieskopf was a second-year psychiatric resident at the University of Toronto and an employee at Sunnybrook Health Sciences Centre. His duties included the provision of both in and outpatient psychiatric consultation services at Sunnybrook and, when working on-call overnight shifts, the provision of psychiatric services for patients admitted to the emergency department.
[25] On direct examination during the voir dire, Dr. Wieskopf was referred to and identified a four-page document entitled “Psychiatry Consult Note-Final” dated May 29, 2019, which was signed by him at 8:17 A.M. May 29, 2019 (Exhibit R). The accused was identified as the patient in this consult note. From reviewing the consult note, Dr. Wieskopf testified that he was working an on-call overnight shift when he saw the accused at approximately 1:00 A.M. on May 29, 2019. Dr. Wieskopf had no independent recollection of seeing the accused on May 29, 2019.
[26] Dr. Wieskopf testified that his usual practice when creating a consult note is to review the patient chart beforehand, prepopulate his notes with as much information as possible, and then visit the patient to gather further information and complete the consult note. Dr. Wieskopf testified to using a notepad to take notes when interviewing patients and then later typing up the consult note in his office using his notepad entries for reference. Dr. Wieskopf was referred to page 4 of Exhibit R and confirmed that he completed this consult note at 8:17 A.M. May 29, 2019.
[27] Dr. Wieskopf testified that all doctors are under a duty to be accurate when creating consult notes, and that he personally tries to be as accurate as possible when doing so. Upon reviewing the contents of Exhibit R, Dr. Wieskopf observed that the consult note contained a good level of detail, suggesting to him that it was drafted when the contents were “fairly fresh in his mind”.
[28] When Dr. Wieskopf was referred to page 1 of Exhibit R, he testified that the information contained in the section entitled “HPI (History of Present Illness)” was sourced from the patient’s previously completed chart combined with other notes he may have read prior to his interaction with the patient. He told the court that the contents of the second through sixth paragraphs of this section, but for the last two sentences of paragraph six, were from his own observations of, and direct interactions with, the patient. Dr. Wieskopf explained that his use of terms such as “Archie explains”, “He endorses” and “He believes” in these paragraphs of the consult note indicate that the information came from the patient directly in response to questions. Dr. Wieskopf testified that the information contained in the last two sentences of paragraph 6, on page 1 of Exhibit R, came from third party sources.
[29] When referred to page 2 of Exhibit R, Dr. Wieskopf testified that the contents of paragraph 1 were “probably” sourced from both the patient’s previous chart entries, and his own personal and professional observations. Dr. Wieskopf testified that the contents of the sections on page 2, entitled “PMH” and “Meds,” came from previous chart entries, and from the patient in response to his questions.
[30] When referred to page 3 of Exhibit R, Dr. Wieskopf testified that the contents of the “Personal History” section came from previous chart entries, and from information provided by the patient. He further testified that that contents of the section entitled “MSE (Mental Status Examination)” were based on his observations of the patient.
[31] On cross-examination during the voir dire, Dr. Wieskopf reiterated that he had no present recollection of meeting with the accused on May 29, 2019, nor of creating the May 29, 2019 consult note. Dr. Wieskopf conceded that he does not generally note a patient’s words or utterances verbatim, but that he tries to get as close as possible to verbatim in his written notes. He also agreed that he could have seen multiple patients between the time he first saw the accused, at approximately 1:00 A.M., and when he completed the consult note, at 8:17 A.M. May 29, 2019.
[32] On cross-examination, Dr. Wieskopf agreed that this consult note was drafted using both his personal notepad notes, and the previously completed chart notes. Furthermore, he noted that it can be difficult to differentiate, five years after the fact, between what came directly from the patient and what came from previous chart entries absent the use of indicative terms such as “he stated”.
PAST RECOLLECTION RECORDED
[33] The law governing the past recollection recorded exception to the hearsay rule is well established and not in issue on this application. To admit an out of court statement under this exception, the party proffering it must establish, on a balance of probabilities, the following four preconditions (see R. v. Fliss, 2002 SCC 16, 1 S.C.R. 535, at para. 63; R. v. Richardson, 2003 CanLII 3896 (ON CA), [2003] O.J. No. 3215, at para. 24):
i. Reliable record: The past recollection must have been recorded in a reliable way. Either the witness must have prepared the record personally or reviewed it for accuracy if someone else prepared it. Also, the original record should be used if available;
ii. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’ mind to be vivid and probably accurate;
iii. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events; and
iv. Present voucher for 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 now assert that the record accurately represented his or her knowledge and recollection at the time.
[34] As noted by the Court of Appeal for Ontario in Richardson, at para. 34, “the past recollection recorded exception is grounded in a concern for reliability…”. As such, the timelines requirement does not call for strict contemporaneity. “It is sufficient if the record is prepared close enough to the events to ensure accuracy …The key is whether the events were fresh in the declarant’s mind”: Richardson, at para. 27
[35] The absence of memory requirement does not mean that a statement is admissible as a past recollection recorded only where the witness has a total loss of memory regarding the relevant events. This exception can be used where the witness “is either devoid of a present recollection or possessed of an imperfect present recollection”: Richardson, at para. 30.
[36] Although the present voucher for accuracy requirement necessitates that the witness assert that they were being truthful and accurate at the time they prepared the record, it is not necessary that the witness assert the truth of the recording from present memory. Such a requirement would prevent admission of any evidence under this rule: see R. v. Podolski, 2018 BCCA 96 (B.C.C.A.), B.C.J. No. 847, at para 341.
[37] Finally, the Supreme Court of Canada cautioned, at para. 64 of Fliss, that “[t]he admission of past recollection recorded but no longer remembered is an exceptional procedure and the conditions precedent to its reception should be clearly satisfied”.
THE POSITIONS OF THE PARTIES
The Crown
O.P.P. Interview Report of Chief Morris
[38] The Crown submits that this statement is a reliable record: it is the product of a formal police interview, transcribed in the first person, and either read to Chief Morris or read over by him for accuracy and completeness prior to signing. The fact that Exhibit F is a copy of the original is not in issue.
[39] The Crown contends that this statement meets the timeliness requirement because it was given only five days after the fire. The Crown notes the high degree of detail in Chief Morris’ statement, which it suggests that the recounted events were sufficiently fresh in his mind at the time such that the statement given was probably accurate.
[40] In addressing the absence of memory requirement, the Crown acknowledges that Chief Morris was able to recall some of the information contained in his statement when testifying at trial. The Crown submits that if Chief Morris’ statement is ruled admissible, the portions of the statement that he had a present memory of at trial could be redacted, such that only those portions of the statement for which he did not have a present recollection would go into evidence for the truth of their contents.
[41] The Crown contends that the present voucher for accuracy requirement is met because Chief Morris, having reviewed his statement several times prior to trial, testified that the statement recorded his honest responses to the questions asked of him by the police.
Dr. M. Elloso
[42] The Crown submits that Exhibit S, which consists of Dr. Elloso’s May 21, 2019 Admission Note and Amended Admission Note, is a reliable record because it was prepared by a medical professional while under a professional and personal duty to be as accurate as possible. The Crown also contends that the information contained in the note was recorded at a time when the accused was oriented and neither agitated nor in distress. Furthermore, the note itself was created approximately 45 minutes after Dr. Elloso’s conversation with the accused. According to the Crown, the fact that Dr. Elloso took the time later in the day on May 21, 2019 to review the information initially obtained from the accused, and to amend the note accordingly, illustrates a level of attention to detail and professionalism that buttresses the records’ reliability.
[43] The Crown submits that the timeliness requirement does not demand that a record be transcribed contemporaneously with the gathering of any information contained. The Crown contends that the initial admission note was completed only 45 minutes after Dr. Elloso’s initial interaction with the accused, and that the amended note was created very shortly after Dr. Elloso met with the accused again on May 21, 2019.
[44] The Crown submits that it is no issue that Dr. Elloso had no specific memory of having met with the accused on May 21, 2019, nor of any of the information contained in Exhibit S.
[45] The Crown contends that the present voucher for accuracy requirement has been met, as Dr. Elloso testified that she would have been as accurate as possible when creating both the admission note and the amended admission note, given that she was under a professional duty to do so, and that other medical professionals would be relying on the accuracy of the notes’ contents.
Dr. J. Wieskopf
[46] In addressing the reliability requirement with respect to Exhibit R, Dr. Wieskopf’s May 29, 2019 psychiatry consult note, the Crown acknowledges that Dr. Wieskopf testified to obtaining some of the information in his note from the accused’s chart, and some directly from the accused. The Crown concedes that only the information in the note which Dr. Wieskopf received directly from the accused should be admitted for the truth of its contents. The Crown suggests that the court may parse this consult note and admit for the truth of its contents only that information which Dr. Wieskopf testified came directly from the accused.
[47] The Crown submits that, once parsed as suggested, Dr. Wieskopf’s consult note is an otherwise reliable and timely record; it was created by a psychiatric resident only hours after his initial meeting with the accused and was based on that resident’s handwritten notes from his interactions with the accused. The Crown notes that Dr. Wieskopf, having reviewed his consult note, also testified that it contained a good level of detail, which suggested to him that it was drafted when the information was “fairly fresh in his mind”.
[48] The Crown submits that Dr. Wieskopf testified to having no memory of meeting with the accused on May 21, 2019.
[49] The Crown contends that Dr. Wieskopf was under a duty to be as accurate as possible when creating the consult note, and that he testified to personally trying to be as accurate as possible in creating medical records. The Crown contends that this evidence satisfies the present voucher for accuracy requirement.
[50] The Crown submits that it has established, on a balance of probabilities, the four preconditions required for the admission of the subject/above/enumerated records under the past recollection recorded exception to the hearsay rule. The Crown submits that the records should go into evidence for the truth of their contents, subject to redactions of Chief Morris’ statement and Dr. Wieskopf’s consult note, as discussed above.
The Accused
O.P.P. Interview Report of Chief Morris
[51] The accused notes some reliability issues with Chief Morris’ statement, including his name being recorded incorrectly at the top of the document and the fact that the interview is recorded as being concluded at 1:00 P.M. on May 7, 2019, but Chief Morris did not sign his statement until 1:58:28 the same day. The accused acknowledges that Chief Morris’ responses appear to have been recorded verbatim, and that the entire statement was reviewed by, or with, Chief Morris prior to him signing off on it. The accused does not take issue with the fact that a photocopy of the statement has been tendered.
[52] The accused submits that the circumstances surrounding the taking of this statement do not meet the timeliness requirement. The accused statement was given five days after a horrific tragedy struck KI; during those five days, Chief Morris, being the community leader, was extremely busy and preoccupied with supporting the families of the deceased victims and the accused, as well as organizing a community response to the tragedy. The accused suggests that portions of Chief Morris’ statement, such as, “I overlooked that yesterday” and “pretty sure that is the only thing that came back to me,” call into question the reliability of Chief Morris’ memory on May 7, 2019.
[53] The accused submits that Chief Morris’ evidence on the voir dire confirmed that he had a present memory of some of the information provided in his May 7, 2019, statement, but an absence of memory related to other information included. The accused contends that if all other preconditions for admissibility are otherwise established, only those portions of the statement that Chief Morris could not recall at trial should be admitted for the truth of their contents.
[54] In addressing the present voucher for accuracy requirement, the accused notes that Chief Morris was unable to explain the one-hour delay between the completion of the statement and his signing of it. However, the accused acknowledged Chief Morris’ testimony that his responses - as recorded in the statement - were honest answers to the questions put to him.
Dr. Elloso
[55] The accused submits that the reliability of Exhibit S, encompassing Dr. Elloso’s May 21, 2019, admissions note and amended admissions note, has not been established. The accused acknowledges that a record need not be made verbatim to what a patient says. However, the accused submits that the admission of a past recollection recorded is an exceptional procedure requiring that conditions precedent to its reception be clearly satisfied.
[56] The accused submits that the Crown, in applying to have these documents admitted into evidence, is also seeking to have them admitted for the truth of their contents, despite Dr. Elloso’s confirmation that at least some of the words, such as the term “embers,” were not the words spoken to her by the accused. The accused submits that Dr. Elloso clearly testified to paraphrasing some of the accused’s statements, which they argue detracts from the reliability of the entire record.
[57] The accused does not seriously dispute that the timeliness, absence of memory and present voucher for accuracy requirements of this exception have been established on a balance of probabilities.
Dr. J. Wieskopf
[58] In addressing the reliability requirement, the accused submits that Dr. Wieskopf’s consult note is replete with information which he obtained from sources other than the accused. The accused contends that this exception to the hearsay rule allows only those only statements which were received directly from the accused to be admitted for the truth of their contents. The accused suggests that the Crown seeks to have this document admitted for the truth of its contents in order to attribute certain aspects, which may help establish consciousness of guilt, on the part of the accused. The accused submits that the reliability of this document has not been established, given that some of the contents are from sources other than the accused.
[59] The accused submits that the timeliness requirement has also not been met. The accused suggests that this condition, in essence, requires a record to have been made while the event was sufficiently fresh in the witness’ mind such that their recollection could be vivid and probably accurate. The accused contends that Dr. Wieskopf drafted his consult note approximately seven hours after meeting with the accused, and that, during those seven hours, Dr. Wieskopf was the psychiatric resident on call for all of Sunnybrook, including the emergency department. The accused submits that Dr. Wieskopf’s interactions with the accused, including exactly what the accused said to him, simply could not have been vivid in these circumstances.
[60] The accused concedes that the absence of memory requirement has been established.
[61] The accused submits that Dr. Wieskopf failed to clearly testify that his consult note accurately recorded what he was told by the accused. The accused contends that Dr. Wieskopf only testified with respect to his usual practice, which was to be as accurate as possible.
ANALYSIS
May 7, 2019, Interview Report of Chief Morris - Exhibit F
[62] I am persuaded, on a balance of probabilities, that this statement is a reliable record. It was a formal police interview conducted by Detective Sergeant Gagne, an experienced police officer. The answers of Chief Morris, as recorded in the statement, are in the first person and appear to be a verbatim record of his responses to the questions posed. The statement was either read back to Chief Morris or read over by him once completed, and he confirmed that there was nothing in the statement that he wished to add, change, or delete prior to signing. The accused takes no issue with a copy of the statement being tendered.
[63] Chief Morris’ statement was taken five days after this tragic fire occurred. It was obvious that the fire had a significant impact on Chief Morris, the leader of this community for approximately 30 years. It is not in dispute that Chief Morris was extremely busy during the period between when the fire occurred and the giving of the statement. However, I am satisfied, from hearing the evidence of Chief Morris and from reviewing the statement, that the events of May 2, 2019, as described in the statement, were sufficiently vivid and fresh in his mind so as to be probably accurate.
[64] Chief Morris testified that he had no memory of what was in the statement. However, he clearly had at least partial memory of some of his observations after he arrived at the scene of the fire. The hearsay exception that the Crown seeks to rely on can still apply where a witness remembers some of the events described in the statement, but not others. In my view, a statement should be redacted accordingly in this situation.
[65] Chief Morris, having reread his statement prior to trial, testified that it reflected his “honest responses” to the questions the officer put to him. I am satisfied that the present voucher for accuracy requirement has been established.
[66] I find that portions of Chief Morris’ May 7, 2019 statement to the police are admissible for the truth of their contents. The statement, Exhibit F, shall be admitted into evidence at trial, as redacted, to eliminate both irrelevant information and information that Chief Morris had a present memory of.
[67] I direct that the following questions and answers from Chief Morris’ May 7, 2019 statement are admissible for the truth of their contents, and that the balance of the statement is inadmissible and to be redacted:
i. Question and Answer 2;
ii. Question and Answer 3;
iii. Question and Answer 5;
iv. Question and Answer 8;
v. Question and Answer 10; and
vi. Question and Answer 11.
[68] There is some overlap between the evidence from Chief Morris admitted under the past recollection recorded exception, and his evidence at trial. However, this is a judge alone trial, and this overlap will not prejudice the accused. The redacted statement of Chief Morris shall be filed as the next numbered exhibit when this trial resumes.
May 21, 2019, Admission Note of Dr. M. Elloso - Exhibit S
[69] I am satisfied that this record is a reliable record. It was created by Dr. Elloso, a medical professional operating under a duty to be as accurate as possible. It was obvious to me from hearing Dr. Elloso testify that she took this professional obligation very seriously and incorporated it into her usual practice. Dr. Elloso noted that the accused was oriented and not agitated or in distress when she saw him and recorded the information in the note. Furthermore, shortly after 3:00 P.M. on May 21, 2019, Dr. Elloso reviewed the information she had obtained from the accused that morning and amended the note accordingly. I accept the submission of the Crown that this attention to detail helps establish the reliability of Exhibit S.
[70] The past recollection recorded exception to the hearsay rule does not require that a record be a verbatim transcription of what has been said to the witness. This is an issue of weight, not admissibility. This exception also does not require that the record be created contemporaneously with the gathering of information, only that it be created within a reasonable time after the information is received. Dr. Elloso drafted the admission note only 45 minutes after seeing the accused, and I am satisfied that the interview was still fresh in her mind.
[71] It is not in issue that Dr. Elloso has no recollection of her interactions with the accused, nor is it seriously in issue that Exhibit S accurately reflects what Dr. Elloso was told by the accused, subject to the portions of the admission note in which Dr. Elloso paraphrased what the accused said.
[72] I am persuaded, on a balance of probabilities, that Exhibit S satisfies the four requirements of the past recollection recorded exception to the hearsay rule. The entirety of Exhibit S is admissible at trial for the truth of its contents. It shall be filed as the next numbered exhibit when this trial resumes.
May 29, 2019, Psychiatry Consult Note of Dr. J. Wieskopf - Exhibit R
[73] It is not in issue that Dr. Wieskopf had no memory of meeting with the accused on May 29, 2019, or of what the accused said to him. It is also not in issue that Dr. Wieskopf vouched for the accuracy of his consult note when testifying.
[74] However, I am not persuaded, on a balance of probabilities, that Exhibit R is a reliable and accurate record of what the accused said to Dr. Wieskopf on May 29, 2019. As stated previously, “the past recollection recorded exception to the hearsay rule is grounded in a concern for reliability” and, as such, all preconditions to admissibility should be clearly established (Richardson, at para. 34).
[75] Dr. Wieskopf reviewed the accused’s chart prior to meeting with him and acknowledged that some of the information contained in his consult note came from the chart rather than directly from the accused. Dr. Wieskopf also conceded on cross-examination that, as a result of this practice, it can be difficult to differentiate between information from the accused’s chart and information received directly from the patient, unless specifically indicated by the use of terms such as “he stated”.
[76] I reject the Crown’s suggestion that Exhibit R should be edited and redacted by the court to remove information obtained by Dr. Wieskopf from sources other than the accused. Given the evidence of Dr. Wieskopf as to his practice, I am neither confident nor satisfied that doing so would eliminate information from sources other than the accused, nor would it leave a reliable record to be admitted into evidence for the truth of its contents.
[77] Exhibit R, the May 29, 2019, Psychiatry Consult Note of Dr. Wieskopf is ruled inadmissible.
“Original signed by”
The Hon. Mr. Justice J.S. Fregeau
Released: August 27, 2024
COURT FILE NO.: CR-22-25
DATE: 2024-08-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
- and -
Archie McKay
Accused
REASONS ON APPLICATION
Fregeau J.
Released: August 27, 2024