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Evidence - Hearsay - Past Recollection Recorded Exception

. R v Louangrath

In R v Louangrath (Ont CA, 2016) the Court of Appeal discussed the 'past recollection recorded' exception to the hearsay rule:
[42] Meeting the requirements of the well-established past recollection recorded hearsay exception will generally be conclusive on the admissibility of the tendered evidence, without any further consideration of threshold reliability. That is because its essential conditions and the declarant’s availability for cross-examination address the hearsay concerns on reliability.

[43] The essential conditions for the past recollection recorded exception were set out in R. v. Richardson (2004), 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.), by O’Connor A.C.J.O., at para. 24, 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.
[44] Three of these conditions are grounded in establishing threshold reliability – namely, the ‘reliable record’, ‘timeliness’, and ‘present voucher as to accuracy’ conditions – while the ‘absence of memory’ condition addresses the necessity of using the hearsay evidence. Significantly, for the admission of this type of hearsay evidence, the declarant is able to be tested under oath through cross-examination about the circumstances under which the recorded statement was made, and on the basis upon which he or she vouches that the recording of events is accurate.

[45] Though not equivalent to contemporaneous cross-examination of present recollections, meeting those conditions, together with the declarant’s ability to testify about them, assuage the hearsay reliability concerns such that, when necessary, this evidence should be admitted. The trial judge should then instruct the jury that this is a lower form of evidence that calls for extra scrutiny.


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Last modified: 05-01-23
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