Presenting the
Difficult Witness
7
I. Refreshing the Witness’s Memory: Present Memory Revived
and Past Recollection Recorded .............................
II. Refreshing Memory: Present Memory Revived ..................
A. What Documents or Items Can Be Used to Refresh a
Witness’s Memory? ..................................
III. Past Recollection Recorded .................................
IV. Making a Section () Canada Evidence Act Application ..........
A. Determining Whether an Inconsistency Exists ............
B.
Successfully Using Section () of the Canada Evidence Act
...
V. Making a Section () Application ...........................
A. Establishing That Your Witness Is Adverse ...............
B. Succeeding in a Section () Cross-Examination ..........
VI. Making a KGB Application ..................................
A. Establishing the Necessity Requirement .................
B. Establishing the Reliability Requirement .................
VII. Ethical Considerations When Seeking to Make a Section (),
Section (), or KGB Application ............................
VIII. Ethical and Practical Take-Aways .............................
A. Ethical Take-Aways ...................................
B. Practical Take-Aways .................................
IX. Quick Reference Figures ...................................
A.
Refreshing a Witness’s Memory: Present Memory Revived
....
B. Past Recollection Recorded ...........................
C. Section () of the Canada Evidence Act Application .......
D. Section () of the Canada Evidence Act Application .......
Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.
Part II Witness Presentation
Testifying in a courtroom setting is a notoriously uncomfortable and stressful event.
Courtroom practices are uncommon. The procedure of being asked to enter the body
of the courtroom, take an oath or armation to tell the truth, and then be seated and
questioned for sometimes lengthy periods of time while a judge (and sometimes a
jury), lawyers, trial participants, and members of the general public observe you is
understandably unsettling. This setting can significantly interfere with a witness’s
ability to convey their evidence in an eective manner. For that reason, the stress of
testifying alone may result in a witness becoming a dicult one. That is not to say
that the witness is intentionally being dicult. Rather, a dicult witness may sim-
ply be one who has become forgetful in the courtroom due to being nervous, anx-
ious, orstressed. On the other hand, in addition to the regular stressors of testifying,
some witnesses are, in fact, intentionally dicult, evasive, and not forthcoming. Such
witnesses may have a motive to be dishonest. For example, a witness may be trying
to protect the accused, who happens to be a close friend of theirs. Or a victim of a
domestic assault may be reluctant to testify against their partner due to the traumas
and fears associated with such oences. The result is that a myriad of issues may arise
that interfere with your attempts to elicit important evidence during the examination-
in-chief of such witnesses.
When confronted with a dicult or forgetful witness, there are many avenues
available that will enable you to properly introduce the evidence that you seek to
adduce. The avenues available include the following, all of which will be covered in
this chapter:
1. refreshing the witness’s memory;
2. seeking to admit a past recollection accurately recorded into evidence;
3. making a Canada Evidence Act1 section 9(2) application in order to have the wit-
ness adopt their prior inconsistent statement;
4. making a Canada Evidence Act section 9(1) application in order to either dis-
credit the witness, lay the foundation for a KGB application, or both; or
5. making a KGB application.2
This list goes from the simplest form of dealing with a dicult witness (refreshing
memory) to the most complex and complicated form (a KGB application). You may
wish to approach these methods in a sequential and incremental manner.
1 Canada Evidence Act, RSC 1985, c C-5.
2 Please note that the term “KGB application” is in reference to R v B (KG), [1993] 1 SCR 740,
1993 CarswellOnt 76 (WL Can). Although the ocial citation refers to Rv B(KG), the case is
almost invariably referred to as KGB. As such, throughout the text of this chapter, the ocial
case name and citation is used in the associated footnotes but the term KGB is used in the body
of the text.
Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.
