http://www.canlii.org/en/on/oncj/doc/20 ... cj489.html - officer refer to his notes only for the purposes of past memory recorded, that he must read the notes verbatim and he proceeded to ask that the notes be submitted as evidence
- The officer was further examined by defence on issues as to where he was standing and the use of the instrument that he was using. Prosecutor was on his feet. He indicated that he did not mind defence asking the questions but wanted a clear ruling whether the notes are being used to expand the memory or is the court going to accept the notes that the officer read verbatim
- No further evidence was given on that day, October 17th, 2006. It was agreed that written submissions be furnished and the matter put over for continuation on December 7th, 2006. On that return day the Justice of the Peace indicated that she had received an abundance of case law from both parties which she had read. She proceeded to give a ruling during which she stated inter alia that
…when questioned by the defendants agent regarding (his) independent recollection, the officer appeared not to have any specific recollection of this incident. Answers were evasive. It appeared no memory of this traffic stop was refreshed by the officers notes. No memory was triggered by the notes.
- No further evidence was given on that day, October 17th, 2006. It was agreed that written submissions be furnished and the matter put over for continuation on December 7th, 2006. On that return day the Justice of the Peace indicated that she had received an abundance of case law from both parties which she had read. She proceeded to give a ruling during which she stated inter alia that
…when questioned by the defendants agent regarding (his) independent recollection, the officer appeared not to have any specific recollection of this incident. Answers were evasive. It appeared no memory of this traffic stop was refreshed by the officers notes. No memory was triggered by the notes
- She stated further that
‘… were dealing with a case where the officers notes did not trigger a memory of this specific occasion, therefore, a case where past recollection is recorded and case law clearly states in such a case, notes must be qualified. The officer reads in notes verbatim without any commentary or explanation. The notes – and theres further case law to support this – the notes are the prosecution evidence subject to submission by defence. Past recollection recorded does by its nature restrict the officers evidence to his lack of memory of the events and the practice of recording accurately what he observed. What the officers daily work routine includes does not apply in this scenario and will not be given any weight.
So we are without a memory being refreshed and are dealing with the notes as evidence
DISPOSITION
- Perhaps the first rule of the law of evidence is that all evidence that is relevant that goes to prove a fact in issue and not subject to any exceptions such as the rule against hearsay, is admissible: R. v. Zeolkowski 1989
- Evidence is generally led through the viva voce testimony of witnesses. Witnesses do not often recall the event about which they are testifying or the details thereof. Witnesses may refresh their memory from a previous statement, even one not made contemporaneous with the events about which the witnesses seek to testify leaving it open to the defence to attempt to demonstrate through cross-examination that the witnesses had, in fact, no present memory of the events or that the memory was unreliable: R. v. B.(K.G.) 1998
- Professionals such as doctors, nurses, lawyers, judges, police officers, deal with hundreds of cases over the course of weeks, months or years. They cannot possibly recall all and so they make notes to trigger their memory of events. They may readily recall some cases -- the delivery by a doctor or a nurse of the first child; counsel's first murder case or initial appearance in the Supreme Court of Canada; the swearing in of a judge; the first investigation by a police officer into the affairs of a major criminal organisation. But in many, if not most cases, their memory will be refreshed only after consulting their notes. That does not mean to say that the person does not have an independent recollection of the event
- A forgetful witness may rely on any means to jar or spark a memory. What triggers recollection is not significant. In this way the witness' memory is presently revived in the witness box and he or she can then give oral testimony of the remembered event present memory revived. Although not the only way, the usual means to revive memory is by reference to a written document made at an earlier time by the witness
As a result the officers evidence was confined to what was contained in the notes. He was not allowed to testify to anything that was not in his notes. Consequently the Justice of the Peace did not consider relevant evidence and she herself complained about the curtailment of the officers evidence.
Further even in the case of past recollection recorded an officer may give evidence of matters outside of his notes such as routine matters of which he is aware, e.g. the location of a street in a particular municipality; the use of the laser device for testing the speed of moving vehicles.
In the result the appeal is allowed and a new trial ordered
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the above decision also slams the "R vs Kassam" decision. starting on line 33
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
