Simon's Megalomaniacal Legal Resources

Evidence - Refreshing Memory

. Kitmitto v. Ontario (Securities Commission)

In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].

Here the court considers the 'refreshing memory' principle as justification for the 'improved memory' of the witness between a pre-hearing interview and hearing:

i. Improved recollection

[114] Mr. Candusso submits that the Tribunal majority erred in dismissing as implausible his direct evidence explaining the reasons for his trades. As one of the reasons for concluding that his explanation was not credible, the Tribunal majority stated, at para. 258(b):

During his compelled interview in 2016 Christopher [Candusso] had only a cursory memory of the details of articles, blog posts and posters who covered Amaya. During his testimony, however, Christopher had an implausibly detailed recollection of many specific articles, posts and BNN coverage of Amaya.

[115] Mr. Candusso argues that this approach is contrary to well-established legal principles that recognize that defending parties are permitted to refresh their recollection through preparation for the hearing: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 335. Mr. Candusso says that it is improper to draw negative credibility inferences from a defending party’s improved level of testimonial detail that resulted from the legitimate exercise of a procedural right: see R. v. A.K., 2020 ONCA 435, at para. 26. He also says that it is improper to impugn a defending party’s credibility by suggesting that their evidence was tailored as a result of their exercise of procedural rights: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 114; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 25.

[116] I see no reversible error in the Tribunal majority’s assessment of Mr. Candusso’s credibility. The trier of fact is entitled to consider inconsistencies between earlier investigative interviews and statements as compared to testimony at trial: R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, at para. 13. In contrast to the authorities Mr. Candusso relies on, the impugned testimony was not affected by pre-hearing disclosure or the prior testimony of other hearing witnesses. The Tribunal majority’s finding did not, as Mr. Candusso argues, conclude that he had tailored his evidence to pre-hearing disclosure or prior testimony or otherwise impinge on any procedural rights. Given the evidence before the Tribunal, I see no palpable and overriding error in the Tribunal majority’s finding.

. Papadakis v. Wawanesa Mutual Ins. Co.

In Papadakis v. Wawanesa Mutual Ins. Co. (Div Court, 2022) the Divisional Court pointed out a practice implication of not introducing an expert report directly in evidence:

[68] From my review of the transcript, it appears that what the Vice-Chair prevented the expert witnesses from doing was the giving of evidence directly out of their reports and notes. The reports, themselves, were not introduced pursuant to the Evidence Act as the expert’s evidence in chief. Therefore, the reports could only be used to refresh the witness’ memory, and not to prompt his testimony, and when they are used for the former purpose, the proper foundation must be laid (see: R. Wilkes, 2005 MBCA 99 at para. 43-44; Stone v. Ellerman, 2009 BCCA 294 (CanLII) at para. 54,56, and 58).

. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considers what documents a witness (here, an investigator) may use to 'refresh their memory':

[62] Ms. Yan also questions the fact that Ms. Yee “never had her own original” investigation notes as an aid during her testimony. Ms. Yee was, in fact, not required to have any document with her to provide her oral testimony at the hearing. She was permitted to refer to the investigation report, if necessary, to refresh her memory. The Supreme Court of Canada has held that witnesses are permitted to refresh their memories using any document if their actual testimony is from present memory (R v Fliss, 2002 SCC 16 at para 8).

. R. v. Kerr

In R. v. Kerr (Ont CA, 2022) the Court of Appeal commented on the use of contemporary notes to refresh recollection:

[22] In any event, the undercover officer could have testified to his conversation with the appellant, and refreshed his memory using contemporaneous notes, even if the recorded conversation was inadmissible. As Binnie J. states, at para. 45 of R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, in these circumstances, it is the officer’s “recollection, not the stimulus [that would rekindle his recollection] that becomes evidence.”

. R. v. Dupuis

In R. v. Dupuis (Ont CA, 2020) the Court of Appeal reviewed the procedure for refreshing memory with a witness' prior statement:

[46] Another situation in which a witness’s prior statement may be put before the witness is where counsel is refreshing memory. This is permitted only where the witness is having difficulty remembering. Whether counsel is permitted to refresh memory in this way is in the discretion of the trial judge, and there is a procedure that must be followed. Counsel must lay a foundation by ascertaining whether the witness is having difficulty remembering. Counsel should ask the witness if they wish to refer to a prior statement. If the witness confirms he or she needs assistance remembering and wishes to refer to the prior statement, counsel should seek leave from the court to refresh the memory of the witness. The statement is produced to opposing counsel, who may object to its use. If the court permits the refreshing of memory, counsel should provide the statement to the witness, and instruct the witness to consult the relevant portion in silence. Counsel can then resume questioning the witness: see Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th Edition (Toronto: LexisNexis Canada, 2018), at ss. 16.128-16.129; Peter J. Sankoff, The Law of Witnesses and Evidence in Canada (formerly Witnesses), (Toronto: Thomson Reuters Canada Limited, 2019), at c. 11.4. If the statement does not refresh the witness’s memory, “no use should be made of it unless the record is admissible under some other rule of evidence”: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 546.