BETWEEN:
RONALD VAN DER STEEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
The Honourable
Justice Don R. Sommerfeldt
|
Counsel for
the Appellant:
|
Alec McLennan
|
|
Counsel for
the Respondent:
|
Nadine Taylor-Pickering
|
ORDER AND DIRECTION
UPON counsel for the Respondent having called Lakhwinder
Saran as a witness to provide similar fact evidence at the hearing of this Appeal;
AND UPON the trial judge having been advised only at the
conclusion of Mr. Saran’s testimony that his appeal in respect of a
reassessment issued against him by the Minister of National Revenue had not yet
been settled or otherwise resolved and was still pending before this Court;
AND UPON counsel for the Appellant having objected to the
admissibility of the evidence adduced by Mr. Saran during his testimony;
AND UPON counsel for the Respondent having called Shellen
Leung as a witness at the hearing of this Appeal;
AND UPON the direct examination of Ms. Leung having
concluded on March 10, 2016, at which time the hearing of this Appeal was
adjourned;
AND UPON the cross-examination of Ms. Leung not having yet
commenced;
AND UPON a question arising as to whether counsel for the
Respondent may communicate with Ms. Leung between the conclusion of the direct
examination of Ms. Leung and the commencement of the cross-examination of Ms.
Leung;
AND UPON counsel for the Respondent inquiring whether,
before the continuation of the hearing of this Appeal on October 24, 2016, she
may provide Ms. Leung with a transcript of her testimony during her direct
examination so as to enable her to refresh her memory;
AND UPON reading the written submissions of counsel for
the Appellant dated March 14, 2016, April 4, 2016 and July 15, 2016 and the
written submissions of counsel for the Respondent dated March 30, 2016, May 20,
2016 and July 15, 2016;
AND UPON hearing the oral submissions of counsel for the
Appellant and counsel for the Respondent during a telephone conference on May
24, 2016;
IT IS HEREBY ORDERED AND DIRECTED that:
1. The testimony of Mr. Saran is admissible, but only for the
purpose of providing evidence of the state of affairs or context (including the
existence, workings, scope, extent and duration of a donation arrangement) in
which donations were made to the Canadian Literacy Enhancement Society (“CLES”) by Mr. Saran and by other donors in similar
circumstances.
2. The testimony of Mr. Saran is not relevant or admissible
for the purpose of implying or proving that the Appellant made a donation to CLES
in circumstances similar to those of Mr. Saran.
3. The testimony of Mr. Saran shall be
given such weight (if any) as the trial judge may consider appropriate to be
given to it, recognizing that the circumstances in respect of Mr. Saran’s
donations to CLES were not necessarily the same as the circumstances in respect
of the Appellant’s donation to CLES.
4. Given the insufficient notice
provided to counsel for the Appellant that counsel for the Respondent intended
to call Mr. Saran as a witness and the resultant lack of sufficient time to
prepare a proper cross-examination, counsel for the Appellant may, as
contemplated by subsection 144(3) of the Tax Court of Canada Rules (General
Procedure), apply for a direction that Mr. Saran be recalled for further
cross-examination.
5. Between the conclusion of the
direct examination of Ms. Leung and the conclusion of her re-examination,
counsel for the Respondent shall not communicate with Ms. Leung in respect of the
evidence provided by Ms. Leung during her direct examination or the
evidence that will be provided by Ms. Leung during her cross-examination or
re-examination.
6. Subject to paragraph 5 above,
between the conclusion of the direct examination of Ms. Leung and the
conclusion of her re-examination, counsel for the Respondent may communicate
with Ms. Leung in respect of:
a) travel arrangements pertaining to the continuation of the hearing of
this Appeal and other administrative matters that do not touch on the evidence
that has been provided or will be provided by Ms. Leung;
b) any settlement offers that might be contemplated or that might
arise; and
c) the appeals of taxpayers other than the Appellant.
7. Before
the conclusion of the cross-examination of Ms. Leung, counsel for the
Respondent shall not provide Ms. Leung with a transcript of her direct examination,
except as permitted by the Court during the course of her cross-examination if
it becomes necessary at that time for her to refresh her memory by referring to
the transcript.
Signed at Ottawa,
Canada, this 19th day of September 2016.
“Don R. Sommerfeldt”
BETWEEN:
RONALD
VAN DER STEEN,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER AND DIRECTION
Sommerfeldt
J.
I. INTRODUCTION
[1]
These Reasons pertain to three interlocutory
issues that arose in respect of the hearing of this Appeal, which began on
March 7, 2016, which was adjourned on March 10, 2016, and which is scheduled to
resume on October 24, 2016.
[2]
The subject of this Appeal is the donation in
2004 by the Appellant of $65,000 to Canadian Literacy Enhancement Society (“CLES”), the federal tax credit and the provincial tax
credit claimed by the Appellant on his 2004 return in respect of that donation
and the subsequent disallowance of those credits by the Canada Revenue Agency
(the “CRA”) on behalf of the Minister of
National Revenue (the “Minister”). The Appellant
was one of numerous individuals who made donations to CLES in a variety of
circumstances, which the CRA categorized into three arrangements,
described by the CRA as Scheme I, Scheme II and Scheme III. The Minister
assumed that the Appellant participated in Scheme II.
II. ISSUES
A. Similar Fact Evidence
[3]
The first witness called by counsel for the
Respondent was Lakhwinder Saran, who is unknown to the
Appellant, who had no relationship of any nature with the Appellant and whose
only connection (if it may be called that) to the Appellant is that Mr. Saran
made several donations to CLES in circumstances that, according to the
Respondent, came within the arrangement described by the Respondent as Scheme
II. The purpose for which Mr. Saran testified was to provide evidence of the context
and manner in which Scheme II operated from the perspective of a donor. Counsel
for the Appellant objected to the admissibility of Mr. Saran’s evidence. I
permitted Mr. Saran to testify, but indicated that the use of his evidence
would be restricted to providing a general context in respect of donations made
to CLES under Scheme II, and that I would determine what weight (if any) should
be given to his evidence. When two other interlocutory issues arose, subsequent
to the adjournment of the hearing on March 10, 2016, counsel for the Appellant
reiterated his objection to the admissibility of Mr. Saran’s evidence.
B. Communication with Witness during
Adjournment
[4]
The second witness called by counsel for the
Respondent was Shellen Leung, who is an auditor employed by the CRA. The direct examination of Ms. Leung
concluded late in the afternoon on March 10, 2016, which was the last of the
four days for which the hearing of this Appeal had been scheduled. It thus
became necessary to adjourn the hearing of this Appeal until additional hearing
dates could be arranged. Counsel for the Respondent has inquired whether she may
communicate with Ms. Leung during the adjournment, and counsel for the
Appellant has objected to such communication taking place, except insofar as it
pertains to administrative matters such as travel arrangements.
C. Use of Transcript to Refresh
Memory
[5]
Knowing that there will be a lengthy interval
between the conclusion of Ms. Leung’s direct examination and the commencement
of her cross-examination, counsel for the Respondent requested permission to
provide Ms. Leung with a transcript of her direct examination in order
that she may read it and refresh her memory before the commencement of her
cross-examination. Counsel for the Appellant objected to Ms. Leung being
provided with a transcript of her direct examination.
III. ANALYSIS
A. Similar Fact Evidence
(1) General
[6]
In two previous decisions of this Court, Abinader
and Kiwan, the Crown introduced similar fact evidence in respect of a
donation arrangement involving a large number of donors. In both of those
cases, the evidence was found to be relevant and admissible.
[7]
In the first case, Abinader, Angers J
stated:
115. I agree
with counsel for the appellant that the fact that a group of people was
involved in an alleged scheme does not mean that the appellant was involved in
it. On the other hand, if the evidence in question serves to establish the
existence of such a scheme, its workings, its scope, the name of the
participants, the persons who signed the receipts, the extent or duration of
the scheme and the number of people who were involved in it, it is my opinion
that this makes the evidence relevant and therefore admissible…. Thus, this
evidence is relevant and admissible.
[8]
In the other case, Kiwan, Dussault J
stated:
195. … Four
taxpayers testified as to the procedure for obtaining their receipts…. This was
all within a context that is impossible to ignore. It does not, however, mean
that all donors were issued fake receipts. As counsel for the Appellants
maintained, we cannot blame the Appellants nor other taxpayers, for that
matter, for the reprehensible activities of third parties and conclude that
they too were involved in the scheme. We need not refer to many decisions to
recognize that the evidence of the activities of third parties is neither
admissible nor relevant to decisions concerning the activities of the Appellants.
However, in my opinion, evidence of the state of affairs or the context, such
as, in the case at hand, the existence of a large-scale scheme carried out over
a number of years, is both admissible and relevant.
[9]
The principles set out above have been applied
in other decisions of this Court. For instance, most of the above excerpt from
paragraph 195 of Kiwan was quoted by Bédard J in Drouin, after
stating that Kiwan allows similar fact “evidence
of the state of affairs or context, and not only [similar fact] evidence of a
scheme.”
[10]
Based on the above principles, I confirm my
earlier ruling that the evidence of Mr. Saran is admissible, but only for the
purpose of providing evidence of the state of affairs or context (including the
existence, workings, scope, extent and duration of Scheme II), and not for the
purpose of implying or proving that the Appellant made his donation to CLES in
circumstances similar to those of Mr. Saran. As I listened to Mr. Saran’s
testimony, it seemed to me that the circumstances of Mr. Saran’s donations to
CLES were not the same as the circumstances of the Appellant’s donation to
CLES. For instance, Mr. Saran learned of CLES by attending a seminar, whereas
the Appellant learned of CLES in a casual conversation with a business
acquaintance, who referred the Appellant to a representative of CLES. As I
review the notes which I made during the hearing and as I read the transcript
of Mr. Saran’s testimony, I will determine what weight (if any) should be given
to that testimony.
(2) Reasonable
Notice
[11]
The hearing of this Appeal began on Monday,
March 7, 2016. During a pre-trial telephone conference on Friday, March 4,
2016, counsel for the Respondent advised counsel for the Appellant and the
Court that she intended to call Mr. Saran as a witness to provide similar fact
evidence. Until then, counsel for the Appellant was not aware that Mr. Saran
would be called as a witness. As counsel for the Respondent provided counsel
for the Appellant with very little notice that she intended to call Mr. Saran
as a witness, several comments made by Bédard J in Drouin are
applicable:
77. The
case law has also recognized the importance of giving the opposing party reasonable
notice so it can refute the similar fact evidence. It is a major element to take
into consideration when assessing prejudicial effects….
79. …
notice given five days prior to the start of the hearing is certainly not
reasonable notice. I therefore find that the appellant did not have a
reasonable amount of time to properly prepare for this evidence….
83. … I
interpret the … words [of the Federal Court of Appeal in Kajat v Arctic
Taglu (The), [2000] 3 FC 96] to mean that a lack of notice is not
sufficient to qualify the admission of similar fact evidence as unfair or
oppressive. I also understand that in the absence of notice, the judge must
provide for an adjournment in order to provide the opposing party with time to
prepare….
95. Moreover,
regarding the lack of notice, I understand from Kajat v. Arctic Taglu (The)
that an adjournment can suffice to remedy a lack of notice, and I am
inclined to allow an adjournment if the appellant makes such a request.
[12]
In paragraph 1 under the subheading “Bullet #3” on page 3 of his written submission of
July 15, 2016, counsel for the Appellant submitted that improper notice of
Mr. Saran’s proposed testimony had been given, without full disclosure. As
explained in the next paragraph, it is my view that the procedural principles
set out in the above quotation from Drouin should assist us in
addressing the concern raised by counsel for the Appellant.
[13]
Subsection 144(3) of the Tax Court of Canada
Rules (General Procedure) (the “TCC Rules”)
provides that a judge may, at any time, direct that a witness be recalled for
further examination. Accordingly, if counsel for the Appellant so desires, he
may apply for a direction that Mr. Saran be recalled for further
cross-examination. If such an application is made, we will need to consider the
timing, logistics, expense and other similar factors in respect of Mr. Saran’s
further cross-examination.
B. Communication with Witness during
Adjournment
[14]
The TCC Rules do not address this issue.
Rather, one must turn to rules of professional conduct, as explained by Bourgard
and McMechan:
Commentary 18 of
Chapter IX of the Code of Professional Conduct of the Canadian Bar Association
provides guidance as to when a lawyer may communicate with a witness during the
course of the witness’ evidence and reads:
Communicating
with Witnesses
18. When in court the lawyer
should observe local rules and practices concerning communication with a
witness about the witness’ evidence or any issue in the proceeding. Generally,
it is considered improper for counsel who called a witness to communicate with
that witness without leave of the court while such witness is under
cross-examination.
One example of
local rules are those in the Law Society of Upper Canada’s Rules of
Professional Conduct [the “LSUC Rules” ],
effective October 1, 2014, giving detailed direction to Ontario lawyers in Section 5.4-2 – Communication
with Witnesses Giving Evidence, which reads:
5.4-2 Subject to the direction of
the tribunal, the lawyer shall observe the following rules respecting
communication with witnesses giving evidence:…
(a.2) between
completion of examination-in-chief and commencement of cross-examination of the
lawyer’s own witness, the lawyer ought not to discuss the evidence given in chief
or relating to any matter introduced or touched on during the
examination-in-chief;
(b) during
cross examination by an opposing legal practitioner, the witness’s own lawyer
ought not to have any conversation with the witness about the witness’s
evidence or any issue in the proceeding;…
(c.1) between
completion of cross-examination and commencement of re-examination, the lawyer
who is going to re-examine the witness ought not to have any discussion about
evidence that will be dealt with on re-examination;…
Another recent
example of local rules on communicating with witnesses giving evidence is Rule
4.04(2) found in the Law Society of Alberta’s Code of Conduct of November 2011.
Alberta’s new Code was developed from the Federation of Law Societies Model
Code of Conduct.
Communication with Witnesses Giving
Evidence
4.04(2) A lawyer must
observe the following rules respecting communication with witnesses giving
evidence:…
(b) during
cross-examination of the lawyer’s own witness, the lawyer must not, without the
direction of the tribunal, discuss with the witness the evidence given in chief
or relating to any matter introduced or touched on during the
examination-in-chief;…
[15]
The corresponding rule from British Columbia is set out in subsection 5.4-2
of the Code of Professional Conduct for British Columbia, as follows:
5.4-2 Subject
to the direction of the tribunal, a lawyer must observe the following rules
respecting communication with witnesses giving evidence:…
(b) during cross-examination of the lawyer’s own witness, the
lawyer must not discuss with the witness the evidence given in chief or
relating to any matter introduced or touched on during the
examination-in-chief;…
[16]
It is notable that the Ontario rules
contain a provision, paragraph 5.4-2(a.2), which specifically addresses the
period between the completion of examination-in-chief and the commencement of
cross-examination, whereas the Alberta and British Columbia codes do not
contain such a provision. If there is an inconsistency between the Ontario
rule and the BC Code, I prefer to resolve that inconsistency in accordance
with the principles underlying section 137 of the TCC Rules and those
enunciated in the Garber case. Section 137 of the TCC Rules
states that “A judge may … adjourn a hearing … on such
terms as are just.” In Garber, Bowman CJ stated that this Court “has an
inherent jurisdiction to control its own processes.”
[17]
In Scavuzzo,
Bowman ACJ (as he then was) presided over a hearing that commenced in April
2004, and then was adjourned for a number of months, after a particular witness,
who was also the Appellant, had been cross-examined but before the Appellant
had been re-examined. The lawyer for the Appellant withdrew from the case due
to a potential conflict of interest, which necessitated the Appellant retaining
a new lawyer to conduct the re-examination. The new lawyer applied for the
approval of the Court to communicate with the Appellant before the
re-examination. In 2004, the Rules of Professional Conduct of the Law
Society of Upper Canada were not identical to the current rules. At that
time, the applicable rule was in paragraph 4.04(e), which read as follows:
4.04 Subject
to the direction of the tribunal, the lawyer shall observe the following rules
respecting communication with witnesses giving evidence:…
(e) between completion of cross-examination and commencement
of re-examination, the lawyer who is going to re-examine the witness ought not
to have any discussion about evidence that will be dealt with on
re-examination….
Bowman ACJ stated
that, “The rule [in paragraph 4.04(e)] is a salutary
one and should be observed in the vast majority of cases.” Although
Bowman ACJ was dealing with the interval between cross-examination and
re-examination and although he found that the case before him was not an
ordinary one (prompting him to make an exception to the rule), I am of the view
that the present case is one of “the vast majority of
cases” in which the corresponding rule concerning communication between
direct examination and cross-examination should be observed.
[18]
As the hearing of this Appeal is being held in
Ontario, and as I am of the view, as was Bowman ACJ in Scavuzzo, that
the rule precluding communication between a lawyer and a witness between direct
examination and cross-examination or between cross-examination and
re-examination is a salutary rule, it is my view that paragraph 5.4-2(a.2) of
the LSUC Rules should be followed.
[19]
Counsel for the Appellant and counsel for the
Respondent have each made concessions which have narrowed the issue to be
determined. In the second paragraph of her written submission of March 30,
2016, counsel for the Respondent stated, “… to preclude
any suggested negative inference, we confirm that we will not discuss with Ms.
Leung our direct examination of her or her evidence given.” In paragraph
5 on page 3 of her submission of July 15, 2016, counsel for the Respondent
stated:
The respondent
has made representation by way of letter dated March 30, 2016 to not discuss
with Ms. Leung her examination-in-chief in order to preclude any suggested
negative inference. The respondent will limit communication with Ms. Leung to
travel arrangements and the administrative matters regarding the other project
appeals currently under case management with the Tax Court of Canada.
Counsel for the
Appellant stated in the fourth paragraph of his written submission of April 4,
2016 that “…there is no concern respecting the limited
topic of travel arrangements,” and in paragraph 1 under the subheading “Bullet #1” on page 1 of his written submission of
July 15, 2016 that, “No one objects to discussions
between Counsel for Justice and her own witness respecting identified
administrative matters not touching on the appeal.”
[20]
Ms. Leung is the auditor in respect of a large
number of reassessments issued by the CRA against numerous taxpayers, one of
whom is the Appellant. Counsel for the Respondent and Ms. Leung are working
together in respect of various appeals filed by many of the reassessed
taxpayers. Counsel for the Appellant has objected to counsel for the Respondent
communicating with Ms. Leung about the appeals of those other taxpayers.
However, counsel for the Appellant has not persuaded me that a communication
between counsel for the Respondent and Ms. Leung in respect of an appeal
brought by a taxpayer other than the Appellant would have a prejudicial impact
on the Appellant’s Appeal. I am of the view that it would seriously impede
the ability of the Respondent to deal with the appeals of those other taxpayers
if counsel for the Respondent were to be prohibited from communicating with Ms.
Leung in respect of those appeals.
[21]
In view of the foregoing, it is my order and
direction that, between the conclusion of the direct examination of Ms. Leung
and the conclusion of her re-examination, counsel for the Respondent shall not
communicate with Ms. Leung in respect of the evidence provided by Ms.
Leung during her direct examination or the evidence that will be provided by
Ms. Leung during her cross-examination or re-examination. I also order and
direct that, subject to the provisions set out in the previous sentence,
between the conclusion of the direct examination of Ms. Leung and the
conclusion of her re-examination, counsel for the Respondent may communicate
with Ms. Leung in respect of:
a)
travel arrangements pertaining to the
continuation of the hearing of this Appeal and other administrative matters
that do not touch on the evidence that has been provided or will be provided by
Ms. Leung;
b) any settlement offers that might be contemplated or that might
arise; and
c)
the appeals of taxpayers other than the
Appellant.
C. Use of Transcript to Refresh
Memory
[22]
The reason for which counsel for the Respondent
would like to provide Ms. Leung with a transcript of her direct examination is
set out in paragraph 8 on page 4 of her submission of July 15, 2016, as
follows:
… it is the
respondent’s position that providing Ms. Leung with a copy of the Transcript is
not for the purpose of reviving her memory regarding the audit of the Thill
donation Schemes and the reassessment of the appellant; rather it is to put Ms.
Leung in the position she would have otherwise been in had her cross-examination
proceeded immediately or soon after completion of the examination-in-chief.
In addition,
counsel for the Respondent also stated the following in paragraph 15 on page 6
of that same submission:
It is unfair to
Ms. Leung to be subjected to a memory test of the audit or a memory test of her
testimony which lasted for two days. Ms. Leung’s memory of the audit will, and
should, come from her notes and documents taken during the time of the audit,
adhering to the principle of contemporaneity of record. However, she should be
allowed the equivalent of notes from her testimony, i.e., the Transcript.
Unlike the parties’ counsel and the Court, Ms. Leung did not take notes of her
March 2016 testimony to remind herself of her testimony. [footnote omitted]
[23]
While there are several cases which have
considered whether a witness may refresh his or her memory by reference to a
transcript of evidence given by the witness in a previous proceeding (such as a
prior trial or an examination for discovery), there is relatively little
jurisprudence concerning the use by a witness of a transcript of his or her
direct examination in order to refresh his or her memory in preparation for
cross-examination in the same proceeding.
[24]
Counsel for the Respondent referred me to R.
v Coffin,
in which, during a trial, counsel for the Crown asked his own witness (the
common law wife of the accused) to refresh her memory by referring to a
transcript of evidence given by her at a preliminary inquiry a year previously. It is notable that the transcript
was presented to the witness during the trial, after she had given evidence
that was inconsistent with the evidence that she had given at the preliminary
inquiry. The witness was not given the transcript prior to the trial to enable
her to prepare for the trial. As well, Cartwright J stated the following in
respect of the use of the transcript:
It was argued
before us that, whether or not counsel was entitled to cross-examine his own
witness, he was entitled to have her refresh her memory by reading inaudibly to
herself the evidence which she had given at the preliminary inquiry. In Lizotte
v. The King …, the question whether a witness may refresh his memory by
referring to the transcript of his evidence at the preliminary hearing was left
open after attention had been called to the views expressed by eminent writers
and I do not find it necessary to decide that question in this case, as it
seems clear from reading the record that the transcript of the preliminary
hearing was used not for the purpose of refreshing the memory of the witness,
who had already without assistance testified as to her conversations with
Coffin, but for the purpose of endeavouring to have her admit, (i) that at the
preliminary inquiry she had not referred to any statement by Coffin that he had
left the three deceased with two other Americans, and (ii) that she must have
been mistaken or untruthful in her evidence at the trial in saying that Coffin
had made such statement to her.
[25]
Counsel for the Respondent referred me to a second
decision of the Supreme Court of Canada, R. v Fliss, in which an undercover police
officer wore a wire and (after obtaining judicial authorization) made a
surreptitious recording of a confession by the accused. At the trial of the
accused, the officer used an edited 49-page transcript of the recording to
refresh his memory of the details of the conversation. Much of the evidence
given by the officer in respect of the conversation between him and the accused
was a verbatim recitation of the transcript. While Binnie J stated that “the officer was entitled to refresh his memory by any means
that would rekindle his recollection,”
in my view it is significant that the officer was rekindling a recollection of
a conversation to which he was a party, and was not endeavouring to rekindle a
recollection of testimony that he had previously given.
[26]
The above-quoted statement by Binnie J was
referred to in Gray v ICBC,
another case to which I was referred by counsel for the Respondent. The issue
in that case was whether a police officer who was a breathtesting supervisor
could refresh his memory, by referring to his inspection records, of the set-up
steps taken by him to prepare the breathalyzer machine used to test a sample of
the accused’s breath. This was not a case of a witness using a transcript of his
prior testimony to refresh his memory of that testimony.
[27]
Counsel for the Respondent also referred me to Brown
v The Wawanesa Mutual Insurance Company.
In that case, a fire destroyed the plaintiffs’ home in 1992, and the insurer
refused to pay out under the policy, alleging that a member of the plaintiffs’
family had deliberately set the fire. The plaintiffs commenced an action
against the insurer in 1993. A trial was held in 1995, and the plaintiffs were
unsuccessful. They appealed, and in 2000 the Saskatchewan Court of Appeal
ordered a new trial. The insurer sought leave to appeal to the Supreme Court of
Canada, but was denied leave. Due to a variety of factors, including a change
of counsel, the effect of debilitating mental illness and various procedural
steps, the new trial had not yet occurred by 2013, when the insurer applied to
dismiss the plaintiffs’ action for want of prosecution. The insurer claimed
that it would be prejudiced, by reason of the lengthy delay, if the appeal were
to be held, given that some witnesses were no longer available and the memories
of the other witnesses had faded. In dismissing the insurer’s application, the
Court of Queen’s Bench stated that the prejudice of fading memories could be “significantly offset by the fact that examinations for
discovery were held and transcripts of the testimony presented at the first
trial and before the Court of Appeal are available.” This was a case dealing with
unique facts, and not a situation where a witness, in preparation for
cross-examination, was seeking to refresh his memory of the testimony given by
him in direct examination.
[28]
The case which is the closest to being on point
and which I have found to be the most helpful is R. v Rutigliano, a decision
of the Ontario Superior Court of Justice.
In that case, the trial of an accused was adjourned midway through the
cross-examination of a police officer. In anticipation of the resumption of the
trial and the continuation of the police officer’s cross-examination more than
five months later, counsel for the Crown applied for leave to provide the
officer with transcripts of her earlier testimony so that she could refresh her
memory prior to the resumption of the interrupted cross-examination.
[29]
In dismissing the Crown’s application, Hill J
suggested that the proposed communication between Crown counsel and the police
officer (by means of an email with attached electronic copies of the
transcripts) could be viewed as being subject to the then applicable rule of
professional conduct prohibiting (without leave of the court) a conversation
between a witness and the witness’s own lawyer during the cross-examination of
the witness. Hill J went on to state the following:
15. While,
in the experience of the court, five months is on its face an atypical gap in a
cross-examination, providing transcripts to Constable Winter inviting reading
of that material may not be essential to her recall of committed positions in
her prior testimony. To some degree the application to have the witness refresh
her memory before resuming cross-examination is both speculative and premature.
Largely on the basis of the passage of time, the nature of the witness’ evidence,
and the real prospect of a revisiting of earlier subjects already addressed in
cross-examination, the application presumes the potential for pervasive lack of
recall on the part of the witness.
16. Given
the constable’s notes as well as emails and other relevant documents as the
predominant source of tracking her activities, it cannot be said that it is
likely that the witness will be unable to recall her prior evidence. Put
differently, while the exercise might well be helpful to the witness and the
flow of the continued proceedings, it is by no means clear that it is sufficiently
necessary to support the application.
17. In
these circumstances, the safer course is to maintain the status quo.
Should Constable Winter express a lack of recall respecting an earlier exchange
with counsel, she will be permitted to refresh her memory from a relevant
transcript.
[30]
I am of the view that similar principles apply
here. Like Hill J, I think that the safer course would be not to provide a
transcript to Ms. Leung before the commencement of her cross-examination. During
Ms. Leung’s direct examination, she struck me as being well prepared and very
familiar with the working papers that she had prepared and the other documents
that she had compiled. I am confident that she will be able to refresh her
memory of the audit by reference to the documents already in her possession. If
it becomes apparent, during her cross-examination, that there is a need for her
to refresh her memory of her direct-examination by reference to the transcript
of that examination, appropriate steps can be taken at that time.
[31]
During the teleconference on May 24, 2016,
counsel for the Appellant advised the Court that he would not be ordering a
transcript of Ms. Leung’s direct examination. Accordingly, it is my
understanding that counsel for the Appellant will not be using such a
transcript in formulating the questions that he intends to put to Ms. Leung
during her cross-examination. In keeping with the principle enunciated in Rutigliano,
counsel for the Appellant “will be held to a standard
of fairness” in his cross-examination and his closing submissions.
IV. OTHER
ISSUE
[32]
At the conclusion of Mr. Saran’s testimony, and
prior to the teleconference on May 24, 2016, I raised a concern about
protecting Mr. Saran and inquired whether this Court could or should grant an
order or direction that the evidence given by him in the hearing of this Appeal
may not be used to cross-examine him or to impugn his credibility during the
hearing of his own appeal. As this issue does not affect the Appellant or the
Respondent (at least insofar as this Appeal is concerned), it was not discussed
to any significant extent during the teleconference on May 24, 2016. Having subsequently
considered the comments made by Bédard J in respect of a similar issue in Drouin, I have now determined that
this is an issue with which I should not concern myself in the context of this
Appeal.
V. CONCLUSION
[33]
If counsel have questions concerning these
Reasons or the accompanying Order and Direction, they may communicate those
questions to me through the Registry.
[34]
No order or direction is made at this time as to
costs.
Signed at Ottawa, Canada, this 19th day
of September 2016.
“Don R. Sommerfeldt”
Email this Content