Ontario Criminal


Evidence

HEARSAY
Prejudice from inability to cross-examine could be reduced through specific jury instruction

Accused charged with assault causing bodily harm. Crown applied to admit portion of statement prepared by witness within days of incident in question under past recollection recorded exception to hearsay rule. Witness was in charge of security at bar and observed some interactions that occurred between accused and complainants. Witness testified that accused was punching or stomping one or both individuals, but that he could not remember angles or exactly who was doing what. Witness testified that he did not have current memory of details of accused’s participation in actual beating and, in this regard, had been relying on what he had stated in statement he provided to his employers and to police shortly after assault occurred. Witness testified that when he typed statement, he was not under influence of alcohol and he wrote statement to best of his knowledge and tried to be honest at time. Witness testified that he wrote statement when events of evening were freshest in his memory and that, at time he wrote statement, he was certain about what he wrote. Application allowed. Witness’s memory loss was genuine, as it had been three years since assault occurred. Witness had continued to work as head of security at bar since incident and had witnessed many confrontations and fights. Witness vouched for reliability of his written statement. Witness’s evidence was highly probative, as it was evidence from independent and uninvolved observer as to what happened during attack in alley. Prejudice that arose from inability of defence counsel to fully cross-examine witness on his observations at time of attack, due to absence of current memory, could be reduced through specific jury instruction to effect that past recollection recorded was lower form of evidence to which jury should give extra cautious scrutiny. Defence counsel had ability to cross-examine witness on his vantage point when observations were made and extent to which his view was blocked due to presence of many men in small space.

R. v. Louangrath (Mar. 5, 2014, Ont. S.C.J., Aitken J., File No. 11-10657) 116 W.C.B. (2d) 164.

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