Past Recollection Recorded
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:
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.
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.
The timeliness
requirement does not call for strict contemporaneity. It is sufficient if
the record is prepared close enough to the events to ensure accuracy. The
appropriate length of time will vary with the circumstances of the case.
The key is whether the events were fresh in the declarant’s mind. See R.
v. Lauzon, [2000] O.J.
No. 3940 (C.A.) (3 days); R. v. Weinberg,
[1993] O.J.
No. 4041 (C.A.) (48 hours); R. v. Eisenhauer (1998), 1998 CanLII
1901 (NS CA), 123 C.C.C. (3d) 37 (N.S.C.A.) (6 days); R. v. Richardson, 2003 CanLII 3896 (ON
CA) (where the passage of 16 hours between the events and the recording came
within the acceptable bounds to give rise to an assumption of reliability).
Absence of memory
At the time the
witness testifies, he or she must have no memory of the recorded events.
The absence of
memory requirement does not mean that a statement is admissible as past
recollection recorded only where the witness has a total loss of memory
regarding the relevant events: R. v.
Richardson, 2003 CanLII 3896 (ON CA).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.
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