R v Slatter, 2018 ONCA 962 (Fairburn):

[47] The appellant claims that the trial judge erred by permitting Lozano’s memory to be refreshed in the manner pursued by the trial Crown. Specifically, the appellant objects to the Crown having: (a) failed to ask Lozano if he wanted some assistance with recalling the events; (b) read out passages from Lozano’s prior statement and preliminary inquiry evidence; and (c) failed to proceed to a s. 9(2) application. Although I agree that, as acknowledged by the respondent, the steps taken to refresh Lozano’s memory did not follow a textbook approach, I disagree that any unfairness resulted from the procedure followed. That procedure made sense in the circumstances of this case.

[48] Before using the prior statement and preliminary inquiry testimony to refresh Lozano’s memory, counsel should have elicited from him that he thought those documents would assist him in reviving his memory. Nothing turns, though, on the fact that the Crown did not first elicit Lozano’s view on that subject.

[49] Lozano had clearly and unequivocally expressed his failure to remember many of the details involving the S.L. incident. His evidence was riddled with comments like: “I don’t remember”, “I don’t remember exactly”, “I don’t recall”, “I guess”. He later expressed his “frustration” and said that he was trying his best to remember. The documents used to refresh his memory, a prior police statement and prior evidence, are standard tools used to refresh memory. In these circumstances, there can be little doubt that had Lozano been asked whether he wanted some assistance in refreshing his memory, he would have accepted the offer and it could have been done.
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[54] Accordingly, the fact that Lozano was not first asked whether he wanted assistance in refreshing his memory, is neither here nor there. If he did not want assistance by having his memory refreshed, the matter would have moved to a cross-examination under s. 9(2) as earlier requested by the Crown. Either way, Lozano would have had his prior statement and evidence put to him.

[55] The appellant also claims that he suffered prejudice when the trial Crown read out the passages from his prior statement and evidence. Again, while the chosen methodology to refresh memory did not follow a textbook approach, it was a fair and practical approach, particularly in light of the fact that Lozano was a hesitant, difficult witness, testifying by video link from California.

[56] Indeed, the fair manner of proceeding is clear from defence counsel’s observations on the record. While he objected to certain aspects of the Crown’s approach, including the accuracy of the transcript from the police interview, defence counsel said that he had “no issue” with how the trial Crown was proceeding to refresh Lozano’s memory. Although a document used to refresh a witness’ memory should be read silently by the witness, so that the trier of fact is not privy to its contents, that was not possible in this case because Lozano does not appear to have had the documents before him in California.