Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, RSC 1985, c C-46, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Ruling on Voir Dire Re: Past Recollection Recorded

Maria V. Carroccia

Released: Orally – May 23, 2025
In writing – May 29, 2025

Introduction

[1] The Crown has brought an application to introduce at trial a text message sent by Brett Howden to Taylor Raddysh on June 26, 2018, as past recollection recorded as an exception to the hearsay rule.

[2] In order to be admissible as an exception to the hearsay rule, the Crown must establish that “the record” meets the criteria set out in R. v. Richardson, 2003 ONCA 3896, para 24. In Richardson, at para. 24, the Court said the following:

Past recollection recorded is a well established exception to the hearsay rule. Although the test has been described in different language over the years, the essential conditions for admissibility are as follows:

1. 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.
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.

See R. v. Fliss, 2002 SCC 16, 161 C.C.C. (3d) 225; Wigmore on Evidence (Chadbourn rev., 1970) vol. 3 at para. 734-755; John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto, Butterworths, 1999) at para. 16.83-16.86.

[3] The text message sent by Mr. Howden reads as follows:

Man, when I was leaving, duber [sic] was smacking this girls [sic] ass so hard. Like it looked like it hurt so bad.

[4] In his testimony in examination in chief during the trial, Mr. Howden testified that he does not remember seeing that happen. Reviewing the message did not refresh his memory and, as a result, the Crown brought this application.

[5] The defence takes the position that the Crown has failed to meet its onus to establish that the text message meets the requirements to be admitted as past recollection recorded.

The Evidence on the Voir Dire

[6] Brett Howden testified on the voir dire that he and Taylor Raddysh were good friends in June 2018. On June 26, 2018, they exchanged text messages commencing at about 10:39 a.m. and continuing sporadically until that evening.

[7] There is a discussion in the text messages about an investigation by Hockey Canada into what happened at the Delta Hotel in London on June 19, 2018.

[8] Mr. Howden testified in chief that he “would believe” that when he was typing out the text messages that the events were still fresh in his memory because the text messages were sent shortly after the events occurred.

[9] When asked whether he was being truthful when he sent those messages on June 26, 2018, Mr. Howden answered that “[he] had no reason to lie” and “I believe I was being truthful”.

[10] In cross-examination, Mr. Howden agreed that the text messages were casual and not a formal conversation. He also agreed that he might have “hit send” without reviewing the messages.

[11] Mr. Howden acknowledged that this was the first time that he heard that Hockey Canada was conducting an investigation. He was nervous and scared. He was young at the time and was concerned about how he was going to explain this to his father and to his family, including his girlfriend. He described that at that time he was experiencing different emotions and thoughts including during the text exchange.

[12] Mr. Howden remembers talking to Mr. Raddysh, but he testified that when he first saw the text messages it was a surprise because he did not remember them.

[13] Mr. Howden said, “I have no reason to lie, that’s what I’m saying”, but agreed with a suggestion put to him by Ms. Carnelos that it would be fair to say that he was being careless with the facts in the text messages. He further agreed that this was a casual text exchange with a buddy and not meant to be factual. He agreed that in fact some of the other texts sent by him during that exchange were inaccurate.

[14] Mr. Howden testified that he did not think about the text messages being used for any purpose and he had no reason to lie or hide anything but “it’s hard to remember”. He did not remember sending the text about Mr. Dubé and could not say he was “trying to be accurate”.

[15] When it was suggested in cross-examination that he could not remember if the content of the text message about “Duber” was true, Mr. Howden answered, “ya correct” and went on to say he has no memory at present of that happening. When pressed about whether he could say that that text was “accurate” he said: “I don’t remember”. He agreed that he was intoxicated during the events but could not remember if he was “sobering up” at the time when he was in Mr. McLeod’s room.

[16] When it was suggested to him that he could not say today that all of the text messages were true at the time, Mr. Howden said that he did not remember sending them and that he was not “trying to lie”. He went on to say that there was a lot going on and it was the first time he was talking about it. It was very stressful for him, and he was looking for a friend to talk to about it. He talked to his parents and his agent who helped him through it.

[17] In re-examination, Mr. Howden said he “had no reason to lie”. When asked if he believed he was being careless factually when he sent this message, Mr. Howden responded that it was hard for him to go back and know how he was feeling at the time but that he “believed what [I] said back then I was being honest”.

General Principles

[18] In R. v. Fliss, 2002 SCC 16, Binnie J. said that the requirements for admission of evidence under this exception to the hearsay rule should be strictly satisfied. At para. 64, he said:

McCormick states “the witness must acknowledge at trial the accuracy of the statement” (p. 246 (emphasis added)). Obviously no particular form of words is required, but the court should not be left to speculate that because the witness ought to have remembered whether the record was accurate, therefore the witness did so remember, despite his silence as to whether he did so or not. The admission of past recollection recorded but no longer remembered is an exceptional procedure and the conditions precedent to its reception should be clearly satisfied.

[19] This passage was cited with approval by Pomerance J. (as she then was) in R. v. Hillis, 2016 ONSC 450, para 106.

The Principles Applied

[20] In accordance with the principles set out in Richardson, I must consider whether each of the requirements have been met to allow admission of the evidence.

[21] First, is this a reliable record? In this context, reliability refers to whether the witness prepared the record personally or whether the witness’ words were accurately recorded and whether the original record is available. In the circumstances, Mr. Howden wrote the text message, and it is available so this condition is met.

[22] Next, the court must consider the timeliness of the record. In this case, the text messages were sent seven days after the events in question. No concern was raised relating to the timeliness of the record and in my view this condition is satisfied.

[23] The third criteria is that there is an absence of memory, although a complete absence of memory is not required: see Richardson, 2003 ONCA 3896, para 30. In this case, there was no challenge by the defence to this criteria having been met and I agree it is met.

[24] The real issue in this case is whether the Crown has satisfied the fourth condition, that the witness has vouched for the truthfulness of the assertions in the record.

[25] The defence submits that Mr. Howden did not and cannot vouch for the accuracy of the text message in question. The witness agreed that some of the texts were inaccurate and that that very text that the Crown seeks to admit into evidence could be inaccurate. He has no ability to vouch for the accuracy of a text message that he cannot remember sending.

[26] The Crown submits that accuracy and honesty are both components of truth and that is effectively what the witness said when he testified “I believe I was being truthful”.

[27] This situation is analogous to the circumstances in Hillis where Pomerance J. said at para. 109:

The concern in this case is with the accuracy and reliability of the statements recorded by police. Ms. Huber testified that she would not lie to the police. She did not, however, testify that she did not lie to the police. She could not testify about what she did or did not do on that occasion because she cannot remember it. It is arguable that, in these circumstances, the third requirement of past recollection recorded is not satisfied.

[28] Although Mr. Howden testified that he was not trying to lie when he sent that message, he did not testify that that message was true. He was uncertain and said different things in examination in chief and cross-examination about that message, at times agreeing that he cannot say that it was accurate, and at other times saying he had no reason to lie. As Justice Binnie said in Fliss noted above, the court should not be left to speculate as to whether the record to be admitted as an exception to the hearsay rule is accurate.

[29] This is a text message sent to a friend, during a casual conversation. It is not a statement made under oath. Mr. Howden was understandably under stress and worried about himself when he learned that an investigation was being undertaken by Hockey Canada, and he was talking about events that occurred when he was drunk.

[30] Under all the circumstances, I find that the Crown has not met its onus to satisfy me that all of the conditions for admissibility have been met to justify admission under this “exceptional procedure” and the text message will not be admitted as past recollection recorded.

Maria V. Carroccia

Justice

Released: Orally – May 23, 2025
In writing – May 29, 2025