R v Nelson, 2020 MBCA 53

Citation: R v Nelson, 2020 MBCA 53 Date: 20200520 Docket: AR19-30-09360 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: her majesty the queen ) S. D. R. Wilson ) for the AppellantRespondent) ) D. C.

Sahulka ) for the Respondent- and - ) (via videoconference) ) ) Appeal heard andDAMIAN KREID NELSON ) Decision pronounced: ) May 5, 2020 ) (Accused) Appellant) Written reasons: ) May 20 , 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules,Man Reg 555/88R, all appeals are heard remotely by videoconferencing until further notice. LEMAISTRE JA (for the Court): [1] The accused appeals his convictions for aggravated assault, robbery with a firearm and three weapons offences.

Healso appeals his conviction for using an imitation firearm while committing the offence of robbery which was conditionally stayed (seeKienapple v The Queen, (SCC), [1975] 1 SCR 729). [2] After the hearing, we dismissed the appeal with reasons to follow. These are our reasons. [3] The accused, along with three co-accused, assaulted the victim and shot him in the leg in an attempt to rob him whenthe victim attended the residence of his friend, the witness, to purchase methamphetamine. While he survived the attack, the victim wasunable to identify his attackers.

However, the witness identified the accused whom she was familiar with, as well as his three co-accused as the men involved in the attack. [4] After being arrested for offences relating to the attack, the witness gave a videotaped statement that led to the arrest ofthe accused. [5] Despite being subpoenaed to testify at trial, the witness did not attend Court until she was detained on a material witnesswarrant. She declined to review her statement prior to testifying and had difficulty recalling some of the details of the attack and theevents which followed.

As a result, the trial judge granted the Crown permission to show the witness her statement for the purpose ofrefreshing her memory. The Crown did not seek to admit the statement into evidence as a form of past recollection recorded or otherwiseas an exception to the hearsay rule. [6] The key issue at trial was whether there was proof beyond a reasonable doubt of the identity of the victim’s attackers. Ultimately, the trial judge relied on the witness’s evidence to find that there was sufficient proof of the accused’s identity.

She wassimilarly satisfied regarding the identity of the other three accused. [7] The issue on appeal is whether the trial judge erred in allowing the witness to testify after reviewing her priorstatement.

The accused argues that the elements required to establish a foundation for refreshing the recollection of a witness were notmet, and allowing the witness to refresh her memory when she gave evidence inconsistent with her statement, was improper. [8] A trial judge’s decision regarding how a witness should be examined is entitled to deference (see Stewart v The Queen, (SCC), [1977] 2 SCR 748 at 751-52; R v Le (TD), 2011 MBCA 83 at para 254; and R v Okemow, 2019 MBCA 37 atpara 88).

[9] Witnesses are entitled to refresh their memories prior to testifying using various materials or aids and commonly do soby reviewing prior statements recorded by the police or notes made contemporaneous with the events that are the subject of thetestimony. A witness’s memory may also be refreshed when he or she has given testimony inconsistent with a prior statement (see TheKing v Laurin (No 5) (1902), (QC CQ), 6 CCC 135 at paras 8, 14 (QC KB); and reference re: Regina v Coffin, (SCC), [1956] SCR 191 at 211, 213).

When a witness has difficulty recalling events while testifying, counsel may attempt torefresh the witness’s memory with his or her statement, for instance, provided the memory is in fact refreshed. If the witness’s memoryis not revived, the statement may be admitted as past recollection recorded provided certain criteria are met. [10] The process for refreshing a witness’s memory involves directing the witness to read silently the relevant part of thestatement.

Once the relevant part of the statement has been read, the Crown proceeds with questioning the witness (see Laurin at paras13-14). [11] As explained by this Court in R v Wilks, 2005 MBCA 99 (at paras 18-19): Witnesses often forget, and so it is permissible to use aids to assist the witness. The use of these aids will fall into one of two categories. They will either

i) assist the witness by reviving his or her memory so that the witness, whose memory has been jogged by the aid, nowhas a present memory of the fact (“present memory revived”), or ii) be a record of the fact, previously made and now attested to as anaccurate record (“past recollection recorded”). The distinction has been explained this way in Professor Alan W.

Mewett, Q.C. & Peter J.Sankoff, Witnesses, vol. 1 looseleaf (Toronto: Carswell, 2004) (at 13-3): True cases of “present memory revived” involve a witness who has actually had his or her memory refreshed. “Past recollectionrecorded” is probably best viewed as an exception to the hearsay rule, whereby evidence of which a witness has no current recall cannonetheless be admitted for the truth of its contents as it was recorded at a time when the witness was able to verify its accuracy.

In the case of present memory revived, the aid is not evidence, but is simply a facilitative mechanism which becomes irrelevant once thewitness has had his or her present memory revived by the use of the aid.

In the case of past recollection recorded, there is no presentmemory, so it is the evidence of the past recollection, recorded usually in the form of notes or the like, that is admitted. [12] The Court also explained that, “Although no precise formula need be followed,” the following foundational elements (theWilks criteria) “must be discernible from the evidence” before a witness’s recollection may be refreshed while on the witness stand (atpara 43): . . . 1. Witness knows the facts, but has a memory lapse on the stand. 2. Witness knows his report or other writing will refresh his memory. 3.

Witness is given and reads the pertinent part of his report or other writing. 4. Witness states his memory has now been refreshed. 5. Witness now testifies what he knows, without further aid of the report or other writing. [13] Whether a witness’s memory has been refreshed is a question of fact (see R v Podolski, 2018 BCCA 96 at para 352). [14] The accused argues that the Wilks criteria for refreshing a witness’s recollection were not met and, therefore, the processfor reviving the witness’s memory was improper.

In particular, he says the evidence did not establish that the witness had a memorylapse on the stand; that she knew her statement would refresh her memory; or that her memory was refreshed by reviewing herstatement. He also contends that the trial judge erred by permitting the witness to refresh her memory when she testified contrary to herstatement.

This, he says, ought to have been the subject of an application to cross-examine the witness on her prior statement pursuant tosection 9 of the Canada Evidence Act, RSC 1985, c C-5; or the cases of R v B (KG), (SCC), [1993] 1 SCR 740; and R vKhelawon, 2006 SCC 57. [15] The process for refreshing a witness’s memory is flexible (see Wilks at para 43; and R v Kemash, 2009 MBCA 15 at para

34 ). While the Wilks criteria need not be rigidly adhered to, we are satisfied that they are apparent on the record. Moreover, in our view, the circumstances of this case are distinguishable from Wilks . In Wilks , the testimonial aid did not revive the witness’s memory and, therefore, his testimony “amounted to inadmissible past recollection” (at para 42). [ 16 ] Here, the record demonstrates that the witness had a genuine memory lapse. At various points during her trial testimony, the witness indicated that she was having difficulty remembering the details surrounding the attack.

She also said that she did not remember a discussion she had with the accused a few days after the attack and whether the accused and the co-accused had social media accounts. When asked to describe the two guns the accused and one of the co-accused had during the attack she said, “Honestly I don’t remember.

Like I lived with this for over a year as a nightmare and I don’t want to think about it anymore.” She also explained that she had been using methamphetamine just prior to being brought to court and that this affected her ability to recall the attack and the events which followed. [ 17 ] As the Crown points out, the witness agreed that reviewing her statement would help refresh her memory.

After reviewing her statement, she named each of the four attackers; described the firearms as shotguns; recalled having a conversation with the accused after the incident in which he admitted to shooting the victim; and provided information about the Facebook accounts belonging to three of the accused.

Despite being a reluctant witness, declining to review her statement prior to testifying and becoming frustrated by having to review her statement to assist her recall of the events, reviewing her statement assisted the witness to answer the questions she was asked and correct responses that were not accurate. [ 18 ] Once the witness’s memory had been revived, there was no need for the Crown to seek to cross-examine her or admit her statement into evidence. [ 19 ] We have not been persuaded that the trial judge erred in the exercise of her discretion to allow the witness to testify after reviewing her prior statement or in relying on the witness’s revived memories to convict the accused.

In our view, despite remembering the attack and the events which followed, the record demonstrates that she recalled these events in much greater detail after reading portions of her statement. [ 20 ] In the result, the appeal was dismissed. JA JA JA