Court File and Parties

Court File No.: Halton - Milton 1260-9533988B Date: 2013-09-17 Ontario Court of Justice

Between: Her Majesty The Queen

— AND —

Tony Law

APPLICATION UNDER SECTION 7 AND SUBSECTION 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Before: Justice of the Peace Kenneth W. Dechert

Heard on: January 8, 2013 and May 8, 2013

Reasons for Judgment released on: September 17, 2013

Provincial Offences Court – Milton, Ontario

Counsel:

• G. Larson, for the municipal prosecution
• L. Carter - agent for K. Cheng, legal representative for the defendant Tony Law

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, as amended, section 7 and subsection 24(1)
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, section 128
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, Part 1, subsection 46(2)

Cases Cited

• Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505
• Piché v. The Queen, [1971] S.C.R. 23
• Regina v. C. (M.H.), [1991] 1 S.C.R. 763
• Regina v. Carosella, [1997] 1 S.C.R. 80
• Regina v. Chaplin, [1995] 1 S.C.R. 727
• Regina v. Collins, [1987] 1 S.C.R. 265
• Regina v. Dixon, [1998] 1 S.C.R. 244
• Regina v. Egger, [1993] 2 S.C.R. 451
• Regina v. Karunakaran, 2008 CarswellOnt 5210 (Ont. C.J.)
• Regina v. Mahaney, [2005] O.J. No. 3840 (Ont. C.J.)
• Regina v. Murphy, [2004] O.J. No. 6277 (Ont. C.J.)
• Regina v. O'Connor, [1995] 4 S.C.R. 411
• Regina v. Persaud, [2011] O.J. No. 3312 (Ont. C.J.)
• Regina v. Stinchcombe, [1991] 3 S.C.R. 326
• Regina v. Zack, [1999] O.J. No. 5747 (Ont. C.J.)
• Rothman v. The Queen, [1981] 1 S.C.R. 640

INTRODUCTION

[1] The defendant, Tony Law, hereinafter referred to as the "applicant", stands charged pursuant to Certificate of Offence no. 1260-9533988B made pursuant to Part 1 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, that he on the 2nd day of August, 2012 at Ontario Street / Parkway Drive, in the municipality of Milton, "did commit the offence of speeding 76 km./hr. in a posted 50 km./hr. zone - community safety zone", contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended.

[2] The trial of the subject charge began before me on the 8th day of January, 2013, when the defendant entered a plea of not guilty. Prior to commencing the evidentiary portion of the trial, I embarked upon a hearing of the applicant's Application made pursuant to section 7 and subsection 24(1) of the Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, as amended, hereinafter referred to as the "Charter", by means of a voir dire. I received evidence on the voir dire as well as portion of the applicant's final submissions on January 8th, 2013. The proceeding was then adjourned until May 8th, 2013 for continuation. On that date, I received further submissions tendered on behalf of the applicant as well as the final submissions of the prosecutor, the respondent on the voir dire. The matter was then adjourned until September 17th, 2013 for my judgment on the subject Charter application.

[3] The applicant was represented by Ms. L. Carter, agent for the applicant's legal representative, Mr. K. Cheng. The respondent/prosecution, the City of Burlington, was represented by Mr. G. Larson.

NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE

[4] The applicant commenced the subject Charter application on the 21st day of December, 2012 by serving a Notice of Application and Constitutional Issue dated December 20th, 2012, on the Attorney General of Canada, the Attorney General of Ontario and the office of the prosecutor from the City of Burlington. The Notice was then filed with Halton Court Services at the Milton Provincial Offences Court on January 2nd, 2013.

[5] In the said Notice of Application and Constitutional Issue, the applicant argues that his rights under section 7 of the Charter had been infringed by the actions of the Government of Ontario through the City of Burlington. He therefore seeks a remedy for the alleged infringement in the form of a stay of proceedings of the subject speeding charge, pursuant to subsection 24(1) of the Charter. The grounds for the subject application are set out in the said Notice, as follows:

THE GROUNDS FOR THIS APPLICATION ARE:

1. That full disclosure has been requested for this matter prior to the first trial. The request of disclosure was submitted by facsimile transmission on the 23rd day of November 2012. It was 6 weeks and 4 days prior to the first trial.

2. That the disclosure was received through fax on the 27th day of November 2012.

3. The disclosure has been reviewed. The officer's notes are typewritten. These notes were supposed to be completed soon after the time of the offence. The notes were typed in advance before observations were made and the officer simply filled out the blanks. The crucial facts such as clarity of the officer's vantage point and the results of tests of the speed measuring device were pre-typed. The officer's notes are not adequate. These pre-typed notes have already established that the test on the laser device was accurately functioned and was capable of measuring the speed of moving motor vehicles.

4. That this evidence is certainly canned and is not acceptable to use as evidence against the offence.

5. That in the case of R. v. Murphy [2004] O.J. No. 6277 (Ont. C.J.); it indicates that canned evidence as disclosure is not acceptable. …

6. That although there have been 1 request(s) for full disclosure in this matter, the Crown has not fulfilled its obligation to provide said disclosure. The Crown's failure to provide this information, has impaired the defendant's ability to make full answer and defence and accordingly constitutes an infringement of the defendant's rights under Section 7 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS and Section 46(2) of the PROVINCIAL OFFENCES ACT, R.S.O. 1990.

7. It is respectfully submitted that the Crown's duty and obligation to disclose is triggered whenever there is a reasonable possibility that the information will be useful to the accused in making full answer and defence. See Dixon v. The Queen, 122 C.C.C. (3d) 1, Stinchcombe v The Queen, 68 C.C.C. (3d) 1.

8. It is respectfully submitted that the information in question namely, adequate evidence of Disclosure is relevant and necessary to the defence in making full answer and defence to the charge. It is necessary that the defendant have possession of this information prior to the trial as to allow them the opportunity to properly prepare a defence. See Stinchcombe v. The Queen, 68 C.C.C. (3d) 1.

9. Such further and other grounds as agent may advise and this Honourable Court will permit.

THE EVIDENCE

(i) Agreed Facts

[6] The agent for the applicant's legal representative and the municipal prosecutor acknowledge that the applicant requested disclosure relative to the subject charge of speeding on November 23rd, 2012 and that he received eight documents from the office of the prosecutor from the City of Burlington, constituting the requested disclosure, by facsimile transmission, on November 27th, 2012.

[7] The parties agree that on November 27th, 2012 the municipal prosecutor sent the following documents to the office of the applicant's representative, in answer to the applicant's request for disclosure relative to the subject charge of speeding:

1. A "full disclosure request form", completed by the applicant's representative, containing the stamp of "Halton Court Services" confirming that disclosure was forwarded to the representative on November 27th, 2012;

2. A photocopy of the notes of the investigating police officer in this proceeding - Police Constable Bendiks of the Halton Regional Police Service. These notes were in the form of a type-written template containing a number of blanks, which had been filled in by the officer, in his own hand-writing;

3. A photocopy of the certificate of offence setting out the subject charge against the applicant;

4. A photocopy of the applicant's driving record;

5. A type-written "notice" to the applicant advising him of the prosecution's intention to seek an amendment to the certificate of offence at trial, if the evidence adduced at trial established a higher rate of speed than stated in the subject certificate of offence;

6. A photocopy of the front page of the "Genesis II Select Directional" radar device users' manual and installation guidelines;

7. A photocopy of sections 7 and 7.1 of the said users' manual and installation guidelines;

8. A photocopy of section 7.2 of the said manual and guidelines.

(ii) The Testimony of Police Constable Adam Bendiks

[8] During the course of the voir dire proceedings of January 8th, 2013, I received testimony from Police Constable Adam Bendiks of the Halton Regional Police Service, tendered on behalf of the applicant. Constable Bendiks is the investigating officer relative to the subject allegations of speeding against the applicant.

[9] Constable Bendiks testified that in June 2006 he commenced employment with the Halton Regional Police Service as a court officer. He stated that in December 2008 he was hired by the said service as a police constable.

[10] The officer testified that upon the commencement of his employment as a police constable he attended police-college. He went on to state that upon finishing police-college in 2009, he undertook training in the enforcement of offences under the Highway Traffic Act. He indicated that during the course of his training in this regard, he developed a template to assist him in making notes of his "evidence gathering", relative to the enforcement of speeding violations, while utilizing the "Decatur Genesis II" radar speed-measuring device and/or its hand-held model.

[11] The agent for the applicant's representative then presented a copy of a document which appeared to be a template of a police officer's investigative notes, titled "Mobile Radar Evidence of PC Bendiks #9127", to Constable Bendiks. The officer identified the document as the form of template that he developed in 2009 and had been using since that time, relative to his speed enforcement duties through the use of radar. He noted that while there were "areas missing" in the template, "everything else" was consistent with the information contained in his "basic template". This document was then entered into evidence on the voir dire, as exhibit #1.

[12] In commenting on exhibit #1, the agent for the applicant's representative acknowledged that the exhibit was a photocopy of the document containing the investigative notes of Constable Bendiks, which was sent to the applicant's representative by the prosecution as part of the disclosure package, on November 27th, 2012. The agent advised that she had "whited-out" or "blanked-out" the information which had been written into the blanks on the template by Constable Bendiks, in preparation for this Charter proceeding.

[13] In completing his testimony-in-chief, Constable Bendiks stated that all of his investigations relative to speeding violations are recorded by him on the template, rather than in his notebook.

[14] During cross-examination, the prosecutor asked the witness to describe the contents of exhibit #1 to the Court without looking at the document. In answering this question Constable Bendiks testified as follows:

The template contains the information such as the facts and issues, the date, the time, the time I tested the instrument, the instrument details such as the make and model and serial number. … I believe I said time of day already – road particulars such as what road I was travelling on or what road the defendant was travelling on, nearby roads as well as the descriptors, lanes and such, direction of travel, weather, what kind of area the road is in whether it's a residential, community safety zone, rural, school zone and then it has the defendant information as well or room for me to add the defendant information such as name, driver's licence, address, vehicle information, make, model, licence plate, the actual speed that I estimated the vehicle to be travelling as well as the speed that I obtained on the instrument, which antennae I used to obtain that speed, the approximate distance that the vehicle was away from me at the time that I obtained the speed, the offence number. Then I've also made room for any additional comments that I would like to add or any statements that the driver has made to me.

[15] The prosecutor and the police officer then engaged in the following question and answer exchange relative to the officer's usual note-taking activity while conducting speed enforcement duties using radar:

Q (the prosecutor): On the template itself, in the blank areas, when do you complete those – the blank areas. When do you fill those out?

A (Constable Bendiks): After issuing the Provincial Offence Notice to the defendant.

Q: And what makes you – what actually makes you activate be it the Genesis II or the hand-held device, why would you actually activate that machine?

A: When I see a vehicle traveling at what I believe is above the posted speed limit.

Q: Thank you. On the template it says that you test the vehicle. You test that machine.

A: That is correct.

Q: Okay. And when do you write down the test times?

A: When I use the template – each morning when I test the instrument, I remember what time it's tested throughout the day if that instrument is used and I end up using the template, I will have that memory, I will have that in my memory. Upon returning to the police station at the end of the night or when I test the instrument after I believe that I may not get a chance to use the instrument again, I will go back and write the second test time in each of the templates I've used that day.

Q: Is there ever been a time when you might be where you would complete the test times shortly before the issuance of the ticket and then shortly after or is it always done at the beginning and end of your shift?

A: No, that happens. I don't always – I'm not always able to use that instrument or to do any proactive speed enforcement at the start of my shift in responding to calls and such like that. So once I'm available and I'm able to do some proactive work, that's when I will test the instrument.

Q: But in any way it would be fair to say prior to using the device, you would test it, you test it.

A: Correct.

Q: And after using the device at some point you will test it.

A: Correct.

Q: Thank you. And how do you test it?

A: Following the manufacturing guidelines.

Q: Thank you. Now what would you do if the radar device that you were testing be found not to be working properly. What would you do?

A: I wouldn't use it that day and I would notify our district response sergeant and it would be repaired through her.

[16] In response to the prosecutor's question as to whether he had ever issued speeding tickets without using the subject template, the officer stated that while he was qualified to use Lidar speed-measuring devices, he had not developed a template for recording notes relative to vehicular speed-measurements obtained through the use of that device. In that regard, Constable Bendiks advised that in situations where he was using a Lidar device, he would record the notes of his investigation on the carbon copy of the Provincial Offence Notice which he would retain. He testified that in making such notes he would record the same information on the copy of the offence notice, as he would on the said template.

[17] In completing cross-examination, the constable testified that he was qualified in the use of the Genesis and hand-held radar devices in April 2009. When he was asked what a radar device was used for, he responded, "to measure the speed of a moving motor vehicle".

[18] During re-examination, Constable Bendiks acknowledged that the subject template, being exhibit #1 herein, contained certain statements which could be described as "assumptions" as they were made in 2009 when he wrote the template. In particular, the agent for the applicant's representative made reference to the following statements in the subject template, as statements made and typed into the body of the template in 2009:

(i) Radar is a device designed to measure the speed of a moving motor vehicle. I tested the instrument at (Time) __________________________ for accuracy according to training guidelines and found it to be in good working order; and

(ii) I observed a motor vehicle approaching (TWRD/AWAY)________ into the range of the radar that appeared to be higher than the speed limit.

In response to the agent's question relative to the second statement set out above, that it represented "an assumption" which he made in 2009 prior to the time that he would have actually made the observation on the roadway, the officer acknowledged the fact that the statement had already been typed on the template. He remarked, however, that in speed enforcement scenarios he could not see how he "would not observe the vehicle".

[19] In completing his testimony during re-examination, Constable Bendiks advised that he uses the template in connection with his traffic-speed enforcement duties while using radar, "for efficiency and organization".

(iii) Exhibit #1

[20] As noted above, during the course of his testimony-in-chief, Police Constable Bendiks identified a document he uses as a template for his investigative note-taking relative his duties in enforcing highway traffic speed-limit violations, utilizing either the Decatur Genesis II radar speed-measuring device or a hand-held radar speed-measuring device. This document, which had been disclosed to the applicant on November 27th, 2012, was entered into evidence as exhibit #1 to the voir dire.

[21] The contents of exhibit #1, being a copy of the subject template, with the hand-written entries made by the police officer in the blank areas therein obliterated, are as follows:

Mobile Radar Evidence of PC Bendiks #9127

PON #. ______________________________________________________

On (Date)___________ I was conducting a mobile speed timing exercise at (Location) ________________________________________________________

RADAR is a device designed to measure the speed of a moving motor vehicle. I tested the instrument at (TIME) ____________________________________

______________________& _____________________________________

for accuracy according to training guidelines and found it to be in good working order.

The instrument in use was a (MAKE & MODEL) ______________________

and the serial number was (SERIAL #) _______________________________

On this occasion the traffic was (LIGHT/Med/HEAVY) __________________

________________and the weather was ____________________________

The area was a (RES/SCHOOL/RUR) _______________________ one where

the speed limit was (SPD LIMIT) __________________________________

At approx. (TIME)______________________________________________

I observed a MV approaching (TWRD/AWAY) ____________________ into

the range of the radar that appeared to be higher than the speed

limit. Estimated the speed of the MV to be (EST) _______________________

___________ I activated the (FRONT/REAR) _______________ antenna and

obtained a reading of (SPEED) ___________________ on the instrument. I

stopped the driver and informed HIM/HER_____ of the offence. I

obtained the drivers name from a DL and found him to be

(Particulars) ____________________________________________________

__ the defendant now before the court ______________________________

The vehicle was a (DESC) ___________________________________________

Bearing the licence plate (PLATE) __________________________________

I also noted that the MV was the ___________________________________

(ONLY/LEADING/FRONT) __________________ vehicle in the range area

at the time of the measurement _____________________________________

I issued a (OFF NOT./SUMMONS) #________________________________

to the driver. I was qualified to use radar in April 2009.

Reduced speed on ticket __________________________________________

Lane ________________________ Distance _________________________

Drivers Comments ______________________________________________

Additional Notes __________________________________________________

_____________________________________________________________ .

THE LAW

(i) Relevant Statutory Provisions

[22] As stated above, in this proceeding the applicant argues that the prosecution's failure to provide him with adequate disclosure pertaining to the subject charge has impaired his ability to make full answer and defence and that his rights under section 7 of the Charter have, therefore, been infringed. Furthermore, the applicant seeks an order staying the subject proceedings as a remedy for the said rights infringement, in accordance with subsection 24(1) of the Charter.

[23] Section 7 of the Charter reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[24] Subsection 24(1) of the Charter reads as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(ii) Relevant Common Law

[25] In its seminal decision in Regina v. Stinchcombe, [1991] 3 S.C.R. 326; [1991] S.C.J. No. 83 (S.C.C.), the Supreme Court of Canada settled the issue of the prosecution's duty to disclose all material in its possession, relevant to a charge against an accused person. In his decision in this case written on behalf of the unanimous court, in paragraphs 28 and 29 therein, Sopinka J. made the following comments pertaining to the material which ought to be disclosed to the accused or defendant:

…The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless the obligation to disclose is a continuing one and disclosure must be completed when additional information is received.

With respect to what should be disclosed, the general principle to which I have referred is that all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence. The attempt to make this distinction in connection with the confession rule proved to be unworkable and was discarded by this Court. See Piché v. The Queen, [1971] S.C.R. 23, at p. 36; Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 645. To re-introduce the distinction here would lead to indeterminable controversy at trial that should be avoided. The Crown must, therefore, disclose relevant material whether it is inculpatory or exculpatory.

[26] Furthermore, in paragraph 17 of Stinchcombe, supra, Mr. Justice Sopinka established a nexus between an accused person's rights under section 7 of the Charter and a failure by the Crown to fulfill its disclosure obligations to that person, by reasoning as follows:

This review of the pros and cons with respect to disclosure by the Crown shows that there is no practical reason to support the proposition of the opponents of a broad duty of disclosure. Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. (See Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1514.) The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non-disclosure was an important factor in the conviction and incarceration of an innocent person. …

[27] Finally in paragraph 33 of the decision, Mr. Justice Sopinka opined as to the breadth of the prosecution's duty of disclosure as follows:

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied. … If the information is of no use then presumably it is irrelevant and will be excluded in the exercise of discretion of the Crown. If the information is of some use then it is relevant and the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor. Moreover, I do not understand the Commission's [the 1984 report of the Law Reform Commission of Canada] statement that '[t]heir statements are not evidence'. That is true of all witness statements. They themselves are not evidence but are produced not because they will be put in evidence in that form but will enable the evidence to be called viva voce. That prosecutors are reluctant to disclose statements because use of them in cross-examination is thereby rendered less effective is understandable. That is an objection to all forms of discovery and disclosure. Tactical advantage must be sacrificed in the interests of fairness and the ascertainment of the true facts of the case.

[28] In his decision, written on behalf of the unanimous panel of the Supreme Court of Canada, in Regina v. Dixon, [1998] 1 S.C.R. 244; [1998] S.C.J. No. 17 (S.C.C.), Cory J. noted that the term "relevance" in the context of the prosecution's disclosure obligations, was described by the Supreme Court of Canada in Regina v. Egger, [1993] 2 S.C.R. 451, at p. 467, as follows:

One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed - Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[29] Furthermore, in paragraph 21 of his decision, Mr. Justice Cory cites the decision of Sopinka J. in Regina v. Chaplin, [1995] 1 S.C.R. 727; [1994] S.C.J. No. 89 (S.C.C.), for the proposition that "the Crown's duty to disclose is … triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence".

[30] In paragraph 22 of Dixon, supra, the said jurist articulated the constitutional dimension of the Crown's disclosure obligations as follows:

The obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to the disclosure of all material which meets the Stinchcombe threshold. As Sopinka J. recently wrote for the majority of this Court in R. v. Carosella, [1997] 1 S.C.R. 80, at p. 106:

The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice.

Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.

[31] However in paragraphs 23 and 24 therein, the jurist noted that "a finding that an accused's right to disclosure has been violated does not end the analysis" and that "the right to full disclosure [was] just one component of the right to make full answer and defence". He opined that "it does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired".

[32] In analyzing the issues of the "impairment of the right to make full answer and defence and the remedy to be granted under section 24(1) of the Charter" in paragraphs 31 to 36 of Dixon, supra, Cory J. stated as follows:

The right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation. Indeed, different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of a failure to disclose after conviction. For instance, where the undisclosed material is available for review at trial the presiding judge will evaluate it in relation to the Stinchcombe threshold to determine whether the Crown breached its obligation to disclose by withholding the material. If it has, an order for production or perhaps an adjournment will be the appropriate remedy. Obviously, these remedies are no longer available after conviction. At this stage, an appellate court must determine not only whether the undisclosed information meets the Stinchcombe threshold, but also whether the Crown's failure to disclose impaired the accused's right to make full answer and defence. Where an appellate court finds that the right to make full answer and defence was breached by the Crown's failure to disclose, the appropriate remedy will depend on the extent to which the right was impaired. Where, as here, the accused was tried before a judge alone, the judge has provided thorough reasons for his decision, and the undisclosed evidence is available for review, an appellate court is particularly well placed to assess the impact of the failure to disclose on the accused's ability to make full answer and defence at trial.

At this point, something should also be said about the standard to be met by an accused who asserts that the right to make full answer and defence was impaired. It is trite but worth repeating that in all cases where a person claims that a Charter right has been violated, he or she must prove on a balance of probabilities that the violation occurred. Thus, before granting any sort of remedy under s. 24(1), it must be found that it was more likely than not that the Charter right in question was infringed or denied. See R. v. Collins, [1987] 1 S.C.R. 265, at p. 277.

The evidence required to meet this burden and the factors to be considered will differ according to the particular right at issue and the particular remedy sought. For example, where a court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden to establish a violation of his Charter right to disclosure. As noted above, the appropriate remedy for such a violation is, at trial, an order for production or an adjournment. Where non-disclosure is raised on an appeal from a conviction, an accused must, as a threshold matter, establish a violation of the right to disclosure. Further, the accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose.

The burden is discharged where an accused demonstrates that there is a possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process. See R. v C.(M.H.), [1991] 1 S.C.R. 763 at 776; Stinchcombe, supra, at p. 348. Imposing a test based on a reasonable possibility strikes a fair balance between an accused's interest in a fair trial and the public's interest in the efficient administration of justice. It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown's disclosure obligations. This would be the result if the Crown were placed in a better position by withholding rather than disclosing information of relatively low probative value. However, the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired.

Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown's failure to disclose, he or she is entitled to a remedy under s. 24(1). Again, it is at this stage that the degree of impairment or prejudice to the accused's rights must be assessed and considered in relation to the remedy sought. For example an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right. See Carosella, supra, at p. 112. By contrast, where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process, and nothing more.

Thus, in order to determine whether the right to make full answer and defence was impaired, it is necessary to undertake a two-step process based on these considerations. First, in order to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict. Obviously this will be an easier task if the accused was tried before a judge alone, and reasons were given for the conviction. If at the first stage an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered. Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non-disclosure on the overall fairness of the trial process must be considered at the second stage of analysis. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed. In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.

[33] In paragraphs 82 and 83 of her majority decision in Regina v. O'Connor, [1995] 4 S.C.R. 411; [1995] S.C.J. No. 98 (S.C.C.), L'Heureux-Dubé J. made the following comments relative to the remedies available to an accused for an infringement of his/her right to full disclosure prior to trial:

It must be remembered that a stay of proceedings is only appropriate 'in the clearest of cases', where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution continued.

(iv) Summary

Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired the accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable. In those 'clearest of cases', a stay of proceedings will be appropriate.

THE POSITION OF THE PARTIES

(i) The Applicant

[34] In her submissions to the Court in this proceeding, the agent for the applicant's representative argues that the prosecution failed to provide "adequate disclosure" to the defendant prior to the commencement of the January 8th, 2013 trial of the subject charge, which served to impair the applicant's right to make full answer and defence relative to the subject speeding charge. She argues that the actions of the prosecution in failing to provide proper disclosure of the anticipated evidence of Police Constable Bendiks in this proceeding, has rendered the trial process unfair and that the applicant has therefore, been denied his right to life, liberty and security of the person, under section 7 of the Charter.

[35] In this regard, the applicant's agent submits that the investigative notes of Police Constable Bendiks in this matter contained some information which the officer typed into the template of his notes for radar speed-enforcement, prior to time of the subject speeding allegations of August 2nd, 2012. The agent specifically identifies two statements set out in the subject template (exhibit #1 herein), which she argues cannot be considered to be "original" evidence but rather "pre-conceived" information and which had been typed into the template prior to the time of the alleged offence; sometime in 2009. Those statements are as follows:

(i) I tested the instrument at (TIME) _________ & _________ for accuracy according to training guidelines and found it to be in good working order [bold face font emphasis added]; and

(ii) I observed a MV approaching (TWRD/AWAY) ____________ into the range of the radar that appeared to be higher than the speed limit [bold face font emphasis added].

[36] The applicant's agent submits that these statements, pre-typed into the template version of the officer's investigative notes, are particularly significant to her arguments herein as the notions of the subject radar device being found to be in good working order at the time of its use and that of the targeted vehicle travelling in the range of the radar device at an visually apparent high rate of speed, are essential elements in the establishment of a prima facie case relative to the alleged rate of speed of the subject vehicle at the material time.

[37] The applicant's agent maintains that the said statements relative to the said purported observations of Constable Bendiks constitute unreliable pieces of evidence as they were pre-typed into the template, without any consideration for any possible variation to the assertions to conform to his actual observations, at the material time. She submits that the inclusion of such scripted assertions could cause the officer to inadvertently proffer inaccurate evidence; relying on the pre-determined statements to refresh his memory, thereby impairing the applicant's right to make full answer and defence and possibly affecting the fairness of the subject trial.

[38] In support of her legal argument that the applicant's right to full and adequate disclosure has been infringed and that subject charge be stayed as a remedy for the rights infringement, the applicant's agent primarily relies upon the conclusions reached in the Provincial Offences Act appellate decision in Regina v. Murphy, [2004] O.J. No. 6277 (Ont. C.J.), wherein Mr. Justice D.C. Downie allowed the appeal against Mr. Murphy's conviction at trial on a charge of speeding. In making this decision and ordering a new trial, the said jurist reasoned, in part, as follows:

Patrick Murphy was stopped by an O.P.P. sergeant on the third day of April at 11:55 p.m. and was clocked by the O.P.P sergeant doing 131kilometres per hour in a 100 kilometre per hour zone.

The matter proceeded to trial and the accused was represented by an agent. The officer, in the form of disclosure, has prepared sheets, which it turns out, constituted a great majority of his evidence at the trial. And some of it I can certainly understand. There is a certain repetition to doing speeding tickets and speeding charges and I can see using some sort of a form where you could fill in the date and the location of where the O.P.P. cruiser was parked at the time. But he then gets into acronyms which are dealing with whether or not the equipment is a particular type of equipment and whether it is in good working order and that is all canned evidence, the way it comes out.

And when one compares the evidence that is in the disclosure with the officer's testimony starting on page six of the transcript – it would appear that he repeated what is in his disclosure almost word for word except that where he has the acronyms, he filled it out. For example, he says I had with me a Decader Electronics Genesis Two Radar Set, serial number and then it is filled in. …

He says I was monitoring and he has a spot where he fills in eastbound T-O-F-V-E-T-P which it turns out to mean traffic observing for vehicle exceeding the posted and then 100 kilometre limit is filled in. I would think this fails as disclosure because how is anyone, who had not seen this before, to have the faintest idea what these little acronyms mean. This is certainly a failure to provide adequate disclosure.

In addition, the defence has raised the issue of the fact that the officer is just reading this stuff and that it is canned evidence.

In my view this sort of evidence amounts to a failure by the prosecutor to present an original case and not just canned evidence. I think the justice of the peace erred when she accepted this canned evidence and that she erred in basing a conviction on it.

[39] The agent for the applicant's representative herein submits that the principles enunciated in Regina v. Murphy, supra, apply to the case at bar. She argues that the pre-conceived statements and assertions set out in Officer Bendiks' template/notes, which do not provide for any variation to conform with his actual observations at the material time, constitute "canned evidence" and that the particular statements cannot be considered to be sufficiently reliable so as to constitute full and adequate disclosure of the anticipated testimony of the said police officer.

[40] In her written submissions in this proceeding, the agent for the applicant's representative submits that the reliability of an officer's "fixed typed notes" should be treated in the same fashion as Court's have treated an officer's testimony where he does not make any notes of a certain circumstance or event or where the notes are sparse. In this regard, the agent relies upon the obiter dicta of Duncan J.in his trial decision in Regina v. Zack, [1999] O.J. No. 5747 (Ont. C.J.) at paragraph 6, where he made the following comments pertaining to the credibility of a police officer's testimony based solely upon his memory, and where the officer had failed to record any of his purported observations in writing:

It is common ground that it is Jackson's [Officer Jackson's] grounds that must be assessed subjectively and objectively. With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to Jackson. The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. …

[41] Furthermore, in her written submissions to the Court, the agent for the applicant's representative notes that while Constable Bendiks would be permitted to use "whatever he feels necessary to refresh his memory", his "evidence as to the observations and notes of this specific allegation must be original, complete and an accurate record of this offence or allegation".

[42] In support of this proposition, the agent for the applicant's representative relied on the reasons enunciated by Mr. Justice S.C. Armstrong in his trial level decision in Regina v Karunakaran, 2008 CarswellOnt 5210 (Ont. C.J.). The accused in this case was charged with the offence of "failing, without reasonable excuse, to comply with a demand made by a peace officer to provide a breath sample into an approved screening device, contrary to section 245(5) of the Criminal Code". The case proceeded before Mr. Justice Armstrong as a combined Charter voir dire, relative to alleged violations of sections 7, 10(a) and 10(b) of the Charter and a trial. The proceeding proceeded over two days following which the jurist concluded that the defendant's rights under section 7 of the Charter had been infringed, because of the inadequacy of the officer's notes. Furthermore, the jurist found that due to the large discrepancy between the police officer's notes and his testimony in court, the Crown had not proven its case beyond a reasonable doubt. The subject charge was therefore dismissed.

[43] Mr. Justice Armstrong's decision in this proceeding was largely based upon the sparse nature of the notes of the investigating police officer. In describing the contents of the officer's notes, the jurist made the following comments at paragraphs 18 to 20 of his decision:

The officer's notes covering events from his first observation of the defendant's car to the time he stopped it consist of one word, the word 'stopped'.

From the word 'stopped' onwards, the officer's notes are: 'The driver appeared nervous. A slight smell of alcohol detected. No other signs of impairment. Driver was asked to exit the vehicle and driver walked normally. At a normal gait.'.

His notes dealing with the approved screening device demand and the attempt to provide a sample consist of: 'Breath demand issued. Driver provided six opportunities to provide a sample. All six times, the driver failed to provide a suitable sample.'

[44] In the portion of his judgment titled "Analysis", Armstrong J. (now R.S.J.) set forth the reasons for his judgment finding that the defendant's section 7 Charter rights had been violated and that the Crown had failed to prove its case beyond a reasonable doubt, in part, as follows:

When I compare the lack of detail in the officer's notes with the detailed testimony he gave in court, the contrast is startling. He basically disclosed the case during his examination-in-chief.

His notes were little more than cryptic jottings. There were significant omissions. For example, there was not detail in his notes as to how he came to stop the defendant's car. There was no indication of where the smell of an alcoholic beverage came from. There was no note that he asked Mr. Karunakaran if he had consumed any alcohol. In fact there was no note of any of his conversation with the defendant.

In this case, the Crown and the officer conceded that the officer's notes were sparse, and should have been more thorough. The officer vowed to prepare more detailed notes in the future. However, in my opinion, the officer's notes were too sparse. They were woefully inadequate, and it was not up to the defence to supplement them by contacting the officer to obtain more detail, as was implied.

More significantly, the officer's notes were insufficient to enable the Crown to provide proper disclosure and resulted in a breach of Mr. Karunakaran's section 7 Charter rights. In this case, as is common practice, the police officer's notes were given to the Crown to disclose to the defence, without any accompanying will-say statements. As such they constituted the means by which the defence prepares full answer and defence. In the post-Stinchcombe era [R. v. Stinchcombe, 1995 CarswellAlta 409 (S.C.C.)], such notes cease to be simply a memory aid. While an officer's notes cannot be expected to record every minute detail, they must contain a complete and accurate record of the significant events in the investigation so as to enable the Crown to fulfill its constitutional obligation to make full disclosure.

Nor was it satisfactory that the officer in effect provided disclosure of the case in court by fleshing out his notes on the witness stand. Such a practice runs completely contrary to the principles of fundamental justice enshrined in section 7 of the Charter. Such a practice would also inevitably lead to unacceptable practical difficulties. As it was, this practice resulted in an adjournment of this case after the office had testified in chief to allow the defence to obtain a transcript and consider its options. Clearly, if such a practice became widespread, trials would be intolerably fragmented and the administration of justice would grind to a halt.

Moreover the state of the officer's notes led me to question the reliability of his testimony in court. Although the officer struck me as sincere and I did not disbelieve what he said, the huge discrepancy between his notes and his testimony in court had a direct impact on my assessment of the case.

[45] In her written submissions in this proceeding, the agent for the applicant's representative made specific reference to the statement set out in paragraph 25 of Regina v. Karunakaran, supra, that a police officer's investigative notes "must contain a complete and accurate record of the significant events in the investigation so as to enable the Crown to fulfill its constitutional obligation to make full disclosure". She referenced this statement, as well as the law enunciated in Regina v. Stinchcombe, supra, and Regina v. Dixon, supra, to support her contention that the Crown has a duty to disclose "information being useful to the accused in making full answer and defence with a complete and accurate record of significant events in the investigation".

[46] In the final two paragraphs of her written submissions in this voir dire, the agent for the applicant's representative stated as follows:

It is respectfully submitted that Section 7 of the Canadian Charter of Rights and Freedoms ensures that an accused not be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. These principles include the right to a fair trial which is achieved through original and complete disclosure by the prosecutor of the materials relating to the allegation.

It is respectfully submitted that the Prosecutor has failed to provide adequate evidence of disclosure that is original and relevant to this defendant in making full answer and defence to the charge as the officer used pre-written evidence.

[47] The agent closed her written submissions by stating that the applicant respectfully seeks an order to stay the subject proceedings.

(ii) The Prosecution

[48] The municipal prosecutor contends that the prosecution has, in this proceeding, fully met its disclosure obligations to the applicant. He states that the completed template comprising the investigative notes of Police Constable Bendiks relative to the subject charge of speeding, considered in its totality, completely discloses the scope of the officer's anticipated testimony. He rejects the contention of the agent for the applicant's representative that just because some of the information on the template is pre-written, to conform to the officer's usual practice the assertions may not be considered to be reliable and capable of constituting "adequate disclosure" of those aspects of Constable Bendiks' anticipated testimony.

[49] Furthermore, the prosecutor submits that the applicant has failed to prove on a balance of probabilities that the prosecution has, in fact, failed to disclose all relevant information for which there was "a reasonable possibility" of the information "being useful to the applicant in making full answer and defence" to the subject charge.

[50] In support of his submission, the municipal prosecutor relies upon the reasoning contained in two Provincial Offences Act appellate level decisions; those of Regina v. Mahaney, [2005] O.J. No. 3840 (Ont. C.J.) and Regina v. Persaud, [2011] O.J. NO. 3312 (Ont. C.J.).

[51] In the case of Regina v. Mahaney, supra, the prosecution appealed the decision of the trial Justice of the Peace dismissing a charge of speeding against the accused. The basis for the appeal was that the Justice of the Peace did not permit the police officer witness on behalf of the prosecution, to refresh his memory when testifying from his notes; described as a completed template, but only from his memory, such that the prosecution failed to prove the elements of the offence beyond a reasonable doubt.

[52] In allowing the appeal, setting aside the dismissal of the speeding charge and ordering a new trial, Mr. Justice Chester found that the trial Justice of the Peace had erred in curtailing the police officer witness use of his template/notes, in order to refresh his memory during his testimony. The appellate justice found that the police officer had established the conditions precedent to allow him to use his investigative notes, in the template format, to refresh his memory.

[53] In rendering his decision in this matter, Chester J. reasoned as follows:

Provincial Constable Hoogerdyk testified that the document that is part of Exhibit Number One and referred to in this judgment as the "template" was developed by him in response to complaints about his handwriting. His practice is to complete the pre-printed template at the time of the incident, at the time of writing out the the Offence Notice. He fills in the blanks where applicable and then glues it to the back of the ticket titled "Enforcement Agency Record" of the ticket, which he keeps as his copy of his notes. It is subsequently disclosed to the Defendant.

An officer's notes, notebook, dash pad or completed templates are not evidence. They are used as an aid to refresh the police officer's memory as to the pertinent details such as time, place, sequence of events, serial numbers, descriptions, and any utterances. With police officers issuing so many tickets each day for all kinds of provincial offences, they need a format or aid that they can follow when testifying, so that they can describe the relevant particulars of the case at trial. They use their notes to refresh their memory, provided that the following three main conditions precedent are met:

1. the notes or aids were made at the time of the incident or shortly thereafter;

2. there were no changes, additions, alterations or deletions since the making of the notes originally; and

3. the officer has an independent recollection and needs his notes to refresh his memory.

I do not see that it makes any difference if he starts with his own template that he has developed, provided no changes are made after he glues it onto the back of the record. In other words, no replacements are made.

If the notes themselves were intended to be entered as evidence, then it would not be an error to require the bar to be raised higher before their admission; but the notes are to refresh the police officer's memory only, not as evidence.

[54] It would appear that this decision is authority for the proposition that the personal investigative notes of a witness may be used by that witness in a proceeding for purposes of refreshing his/her existing memory of the matters recorded in the notes, while testifying, provided that certain conditions precedent are met. The decision does not exclude notes made in a template format, for use by the witness as an aid to his/her memory. While such templates or notes used to trigger the memory of the witness do not constitute evidence per se, they will, as indicated by Mr. Justice Chester, nevertheless constitute documents which must be disclosed by the prosecution to the accused as part of the prosecutor's obligation to make full and proper disclosure of all information relevant to the subject charge.

[55] Furthermore, the municipal prosecutor submitted to the Court, the Provincial Offences Act appellate decision in the case of Regina v. Persaud, [2011] O.J. No. 3312 (Ont. C.J.), as authority for the proposition that it was acceptable for a police officer to utilize a template prepared by him/her contemporaneously with the time of his/her observations, but which also contained certain pre-typed statements, for purposes of refreshing his/her existing memory of his/her observations, during the course of his/her testimony.

[56] In Regina v. Persaud, supra, the defendant appealed his conviction on a charge of speeding, on the basis that in convicting the defendant the trial Justice of the Peace "relied on the evidence of the officer when that evidence was given with reference to a template on which the witness had set out the outline of the offence of speeding and had taken that template with him to the location where he was using radar to detect speeding vehicles". It is noted that during the appeal it was argued that parts of the evidence as derived from the template were pre-recorded on the said template, prior to the police officer commencing his investigation of the speeding allegation. Madam Justice Woolcott dismissed the appeal finding that the Justice of the Peace had "properly weighed and relied on the evidence" of the investigating police officer and based on this evidence "arrived at the appropriate conclusion".

[57] In setting out the background of the case in her reasons for judgment, Woolcott J. stated as follows:

Provincial Constable Egberts had been an officer for nine years at the time of the trial. He had gone to a pre-set location to set up what is commonly known as a radar trap. He took a template that he had created and on which he had made pen written entries. The template apparently had the basic information and he filled in the particulars of what happened in the incident.

It was his evidence, not contradicted, that he had an independent recollection of the events as well. He indicated that he had created the notes for the purpose of refreshing his memory when he reviewed them and to provide disclosure. He indicated that he would have left a few things out of his notes, that is to say that he had left a few things out of his notes but that he had these as part of his independent recollection or that some of his evidence might be triggered by reference to the ticket that he had written.

At trial he was questioned as to the template. He agreed that part of the template says "MV appeared to be above posted speed limit" and that he had nowhere in his notes nor on the template made an estimate of the speed at which the motor vehicle was travelling when he decided to lock on to it. That ultimately, I think, did not become such a point of reference with respect to the use of the radar but it was, I think, one of the points that the appellant was relying on to suggest that there were not things in his notes that might have been there.

[58] In setting forth her reasons for dismissing the appeal, Madam Justice Woolcott made, in part, the following comments on the ability of witnesses to make reference to notes including templates containing pre-printed information, for purposes of refreshing their memory:

The law in practice appears to be clear that a witness is entitled to use properly qualified notes or memoranda to refresh his or her memory in giving evidence at a trial. While at one time it may have been thought that contemporaneity in the making of the note or memorandum was crucial to its use, it is now accepted that this only goes to weight.

In this case, the witness sought and was granted permission to refer to his notes. These notes were partly a prepared template which one assumes he used to remind him of the essential aspects of the investigation since he had them with him when he was in his cruiser and these essential aspects would logically also be what was required to be given in evidence.

On its face this would appear to be the action of a prudent officer who is engaged in a large number of cases as in this case and who needs to have individualized notes but where large portions of the notes are going to cover exactly the same areas of evidence. For example, each day the officer is going to get into a particular cruiser; he is going to take a particular radar device; he is going to go to a particular location; he is going to be looking for particular things; and those things are all exactly the same every time he goes. The differences will be the particular speed at which he logs motor vehicle; the particular individual who is operating the motor vehicle; and whatever interaction he may have had with that individual.

On its face, as I say, this would appear to be a prudent action on the officer's part. In this case it was clear that the officer was dealing with the case as a particular case and that he did have an independent recollection of the events. Even if he had not had an independent recollection, his notes might still have been admissible as past recollection recorded but we do not go into that although that might be another area in which this kind of evidence could be used.

The process of cross-examination is designed to catch the officer out or the witness out where the witness has no recollection or where his notes fail to properly describe what has happened. In this case, cross-examination was permitted without limitation as far as the transcript goes. It is not the case that the witness must have everything recorded in his notes although a failure to record something may lead to an adverse inference depending on the particular circumstances of the case.

It may be that deficient notes, especially if they are deficient deliberately to thwart the purposes of disclosure, may lead to repercussions in terms of the prosecution's success, however, there is no suggestion of that in this case.

The notes were disclosed. They were sufficient to give adequate and fair disclosure of the prosecution's case. In the elements of the offence which were particular to Mr. Persaud's case they were prepared in a timely and appropriate fashion. I would not necessarily agree that such notes would not be accepted in a Criminal Code case. …

I can agree with Mr. Brohman [the counsel for the appellant] that a checklist might be a better way of creating a template because it would then be the case that the witness had shown that he had at least adverted to each aspect of the case but just because it might be a better way is not to say that it is the only way. Having said that, I find no fault with the Justice of the Peace's judgment. …

[59] In concluding his submissions to the Court in this Charter voir dire, the municipal prosecutor argued that none of the five decisions of the Ontario Court of Justice cited by the parties herein, are binding on me for the proposition that in producing Constable Bendiks' investigative notes herein in a template format, the prosecution has failed to provide the applicant with full and adequate disclosure of the nature and scope of the officer's anticipated evidence.

[60] The prosecutor submits that the decision of Woolcott J. in Regina v. Persaud, supra, is persuasive authority for the proposition that a witness may refer to personal notes written on a template containing pre-determined information to refresh his/her memory of certain recorded events while testifying, and that such notes constitute adequate disclosure of the witness' anticipated evidence relative to the prosecution's Charter based obligation to disclose all material relevant to the subject charge, in its possession or control. He therefore encourages me to follow the reasoning in this case.

[61] In summary, the prosecutor argues that the applicant has failed to prove on a balance of probabilities that his right to receive full and proper disclosure relative to the subject speeding charge has been denied; based on the fact that disclosed notes of the investigating police officer contained, in part, pre-determined information rather than "original evidence". He submits that the subject Charter application should therefore be denied.

THE ISSUES

[62] The ultimate issue in this voir dire is whether or not the prosecution, being the Government of Ontario through the City of Burlington, has denied the applicant of his rights under section 7 of the Charter to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice, relative to the subject speeding charge. In considering this issue, I must remind myself that the burden of proving the alleged violation rests on the applicant on a balance of probabilities. Accordingly, I must ask myself whether the totality of the evidence before me in this Charter application supports a finding that it is more probable than not that the applicant's rights under section 7 have been infringed, based upon the alleged failure of the prosecution to provide him with full and adequate disclosure of information related to the said charge, prior to trial.

[63] If the applicant persuades me on the preponderance of the evidence that his section 7 Charter rights have been infringed, I then have the responsibility to consider his request for an order remedying the Charter infringement, in accordance with the principles stated in subsection 24(1) of the Charter. In doing so, I must exercise my discretion to craft a remedial order which is both appropriate and just in the circumstances of the subject rights violation.

[64] The sub-issue in this proceeding is whether or not the prosecution has failed to provide the applicant with full and adequate disclosure of all information relevant to the charge, and in doing so has impaired either the applicant's right to make full answer and defence or his right to a fair trial. These rights fall into the broad category of principles of fundamental justice enshrined in section 7 of the Charter. Any violation of these rights would trigger the consideration of a remedial order under subsection 24(1) of the Charter.

[65] In attempting to resolve this sub-issue, I must focus on the propriety of the actions of the prosecution in attempting to discharge its disclosure obligations, relative to the anticipated evidence of Police Constable Bendiks, through the production of the officer's investigative notes made, in part, in the form of a template or script. The question I must pose to myself is whether the fact that the template contains information relevant to the investigation of the subject speeding charge by Officer Bendiks; purportedly observed by him on the date of the alleged offence, but which was actually typewritten on the template prior to the date of the purported observations, taints the adequacy of the totality of the Officer's investigative notes contained in the template for disclosure purposes.

[66] The applicant submits that the pre-determined information in the template that at the material time Officer Bendiks found the radar instrument that he was using to conduct speed enforcement "to be in good working order" and that prior to activating the instrument he "observed a motor vehicle approaching into the range of the radar that appeared to be higher than the speed limit", was unreliable information, as it did not constitute "original" evidence of those alleged events. He contends that the officer's notes in a template form, relative to these pieces of the anticipated evidence of the police officer as they pertain to the rate of speed of the applicant's motor vehicle at the relevant time, do not meet the standard for full and acceptable disclosure as established by the Supreme Court of Canada in Regina v. Stinchcombe, supra.

[67] The applicant therefore argues that the failure of the prosecution to produce the police officer's original notes relative to the pieces of information which were pre-typed on the template form, constitutes a failure on the part of the prosecution herein to provide disclosure of all information or evidence, which it was reasonable to believe could possibly be used by the applicant in making full and answer and defence, and thereby constitutes a violation of his section 7 Charter rights.

ANALYSIS

[68] In assessing the position of the respective parties in this Charter application, I must first consider the consider the jurisprudence relied on by each party, in order to determine whether those decisions set forth particular propositions of law which are both relevant to the issues in this proceeding and binding on me in accordance with the common law doctrine of stare decisis. The applicant relies upon the contents of the decisions in Regina v. Murphy, supra, Regina v. Zack, supra, and Regina v. Karunakaran, supra, whereas the prosecutor, the respondent herein, relies upon the contents of the decisions in Regina v. Mahaney, supra, and Regina v. Persaud, supra.

[69] I acknowledge, however, that I am clearly bound by the general principles related to the broad issue of Crown disclosure in the context of section 7 and subsection 24(1) of the Charter, as established by the Supreme Court of Canada in its decisions in Regina v. Stinchcombe, supra, Regina v. Collins, supra, Regina v. C.(M.H.), supra, Regina v. Egger, supra, Regina v. Chaplin, supra, Regina v. O'Connor, supra, Regina v. Carosella, supra, and Regina v. Dixon, supra, referred to above.

[70] The principles of law established in the decisions of Regina v. Zack, supra, and Regina v. Karunakaran, supra, are not binding on me in this proceeding as they are trial level decisions of the Ontario Court of Justice, a trial court for which I have concurrent jurisdiction. On the other hand, I have a duty to consider the reasoning enunciated in those decisions to assess their persuasive value in the context of the issues to be decided on this voir dire.

[71] The applicant relies on the obiter dicta of Duncan J. in Regina v. Zack, supra, for the proposition that the failure of a police officer, "in this day of full disclosure", to make note of an observation of a piece of evidence, preferring to rely on his/her memory, was a serious omission which would serve to undermine the credibility of his/her testimony. While this proposition of law is not directly related to the issues I must decide in this matter, I nevertheless accept the authoritative nature of the jurist's observation in that regard.

[72] The principles of law addressed in Regina v. Karunakaran, supra, are certainly related to the issues before me in this proceeding and I find the conclusions reached by Armstrong J. therein, to be persuasive. The facts, however, of that decision are distinguishable from the facts established through the evidence received by me during this voir dire.

[73] While the primary legal issue which was analyzed by the said jurist in Regina v. Karunakaran, supra, was whether or not the notes of the investigating police officer therein were sufficient to meet the Crown disclosure requirements pertaining to the anticipated evidence of the police officers at trial, it is quite clear that the officer's notes in that case were remarkably sparse; described by Mr. Justice Armstrong as being "woefully inadequate". Additionally, the trial judge noted that his assessment of the case and, in particular his finding that the police officer's evidence was unreliable was based on "the huge discrepancy between [the police officer's] notes and his testimony in court…"

[74] On the other hand, in the case at bar there is no evidence before me upon which I could find that Police Constable Bendiks' investigative notes, partially recorded on a template, were "sparse", as the notes were described in Karunakaran. I acknowledge that I have not seen the information which had been entered by hand on the template by Officer Bendiks in connection with the subject speeding charge, in order to fully assess the detail of the events described in the notes; however, the limited amount of evidence before me relative to the actual contents of Constable Bendiks' notes does not permit me to conclude that his notes in this proceeding in any way resembled the extraordinarily brief investigative notes recorded by the police officer in Karunakaran, supra. It is for those reasons that I find that the conclusions reached in Karunakaran, supra, are based on the unique facts of that case and cannot be applied in an authoritative way to the issues to be decided on this voir dire.

[75] It is noted that the cases of Regina v. Mahaney, supra, Regina v. Murphy, supra. and Regina v. Persaud, supra, are all decisions of the Ontario Court of Justice, sitting as a Provincial Offences Act appellate court and as such any propositions of law established in those decisions, which are not inconsistent with a ruling of a superior court, are binding upon me as a Justice of the Peace of the Ontario Court of Justice.

[76] The case of Regina v. Mahaney, cited by the prosecution, stands for the legal proposition that an officer - witness may use any notes or memory aid made by the him/her while testifying provided that the notes were made at the time of the recorded event or shortly after, provided that no changes, additions, alterations or deletions had been made to the notes or memory aid since the time of making and provided that the witness had an independent recollection of the recorded events and needed his/her notes to refresh his/her memory. Furthermore, the decision appears to support the notion that an officer's notes, notebook, dash pad or completed templates are not evidence, and may in the context of the conditions precedent cited above, only be used for purposes of refreshing the memory of the police officer witness.

[77] I accept the binding nature of this decision on me relative to the propositions of law summarized above.

[78] It would appear that in this proceeding, the applicant primarily relies upon the decision of Downie J.in Regina v. Murphy, for the proposition that the evidence of a police officer witness based upon a template which has been prepared prior to the time of the events of which he/she testifies and is used to refresh his/her memory, cannot be considered credible and reliable evidence. In that case, the jurist considered the appeal of the defendant on a charge of speeding and found that since the officer's memory was refreshed by notes which had been prepared on a template and which contained certain pre-conceived information, the verbal evidence of the police officer was insufficient to support the decision of the trial justice of the peace convicting the defendant. In obiter dicta, Mr. Justice Downie noted that the disclosure by the prosecution of the officer's notes in a template form containing pre-written information was "certainly a failure to provide adequate disclosure".

[79] I acknowledge that since this decision is one of the Ontario Court of Justice, sitting as a Provincial Offences Act appellate court, the principles of law enunciated therein are binding upon me as a Justice of the Peace of that Court. Having said that, the said decision is distinguishable from the Charter application before me as the decision was made in the context of an appeal of a conviction of a provincial offence matter. While the facts of the said decision are similar to those before me in this proceeding, the appellate justice's decision to allow the appellant's appeal against conviction was based on his conclusion that the "canned" verbal evidence given by the police officer, based upon his notes written upon a pre-typed template, was not sufficiently reliable to support a finding that the Crown had proven all of the elements of the subject offence, beyond a reasonable doubt.

[80] In this decision, other than a brief statement made by way of obiter dicta that the officer's template-style notes did not constitute adequate disclosure, Mr. Justice Downie did not analyze whether the defendant had shown on a balance of probabilities that his rights to full and adequate disclosure under section 7 of the Charter had been denied. For these reasons, I conclude that the legal principles enunciated in Regina v. Murphy, supra, are not binding upon me in the context of the Charter application at bar. I must, however, instruct myself that I have a duty to consider the persuasive value of the various legal propositions established in the said case, either through its ratio decidendi or obiter dicta.

[81] Finally, in the course of his legal argument the prosecutor made reference to the decision of Woolcott J. in Regina v. Persaud, supra, in support of his position that the production of Officer Bendiks' notes relative to the subject speeding charge, completed on a template, constituted full and adequate disclosure.

[82] It is acknowledged that the Persaud decision is a Provincial Offences Act appellate decision and as such, any applicable propositions of law enunciated therein would be binding on me as a Justice of the Peace of the Ontario Court of Justice. However, as in the case of Regina v. Murphy, supra, the Persaud case was based upon an appeal by a defendant of his conviction on a charge of speeding.

[83] The issue in Regina v. Persaud, supra, was the correctness of the decision of the trial Justice of the Peace rather than whether the defendant's section 7 Charter rights to full disclosure had been violated prior to trial. In the said decision, Madam Justice Woolcott upheld the decision of the trial Justice of the Peace convicting the defendant of the speeding charge, finding that the Justice of the Peace had properly weighed and relied on the evidence of the investigating police officer at trial; even though the officer had apparently refreshed his memory during the course of his testimony by making reference to notes that he had prepared on a template containing some pre-typed information. As the decision was not made in the context of a Charter application relative to the issue of the sufficiency of the template as disclosure of the investigating officer's anticipated evidence, it is not binding on me based upon the doctrine of stare decisis.

[84] I am, however, able to determine to what extent the reasoning stated in the decision either in the context of the ratio decidendi of the decision or any statements made by the jurist in obiter dicta, may be persuasive to me in making my final decision in this Charter application. In this regard, I have found Madam Justice Woolcott's decision in Persaud, to be highly persuasive particularly in respect of her finding that the police officer's notes prepared on a template were "sufficient to give adequate and fair disclosure of the prosecution's case" to the appellant. In reaching this conclusion, the jurist noted that the portion of the police officer's notes which related to the particulars of the appellant's specific case, were prepared by the police officer in a "timely and appropriate fashion", in accordance with his observations of the appellant's motor vehicle.

[85] After carefully analyzing the totality of the evidence and legal submissions in this voir dire, I am of the view that the applicant has failed to prove, on a balance of probabilities that the prosecution has failed to fulfill its disclosure obligations relative to the anticipated testimony of Police Constable Bendiks. In particular, I am of the opinion that it would be speculative for me to find that the prosecution has failed to provide the applicant with full and adequate disclosure of the particulars of Constable Bendiks' anticipated testimony, without first having an opportunity to review the contents of the template relative to the information actually written into the blank fields of the template.

[86] It is quite apparent that the thrust of the applicant's argument is that the production by the prosecution of the template prepared by Officer Bendiks in this proceeding, containing, in part, pre-conceived statements and assertions related to crucial aspects of the prosecution's case, cannot constitute adequate, reliable disclosure of the actions actually taken and the circumstances actually observed by the police officer at the material time. This argument is based on a bald assumption that the officer would not likely exercise the necessary diligence to ensure that any pre-typed assertions set out in the template be amended or struck out, if such assertions were, in fact, erroneous.

[87] During his testimony, Constable Bendiks stated that he developed the template in 2009, with the assistance of a senior police officer. He testified that uses the template in connection with his speed enforcement activities, when using a radar device, for "efficiency and organization". He advised that his usual practice is to fill in the blank areas of the template, after he has issued a provincial offence notice for speeding to a driver. He advised that it is his usual practice to activate a radar instrument when he observes a vehicle travelling at what he believes to be a rate of speed in excess of the posted speed limit.

[88] Furthermore, during his testimony Officer Bendiks stated that it is his usual practice when using a radar speed-measuring device to test it both before and after its use in accordance with manufacturing guidelines. When asked what he would do if the testing of the radar instrument revealed that it was not working properly, the officer responded that he wouldn't use it that day and that he would notify his "district response sergeant" so that the device could be repaired.

[89] Officer Bendiks' testimony during this voir dire tends to support a finding that the pre-written assertions contained in his note-taking template concerning the radar device being "in good working order" following testing procedures, and his observation of "a motor vehicle approaching the range of his radar that appeared to be higher than the speed limit", are reliable pre-determined statements, as his usual practice would reflect that he would not undertake any speed-enforcement activity triggering the completion of the template, unless those particular conditions precedent had been met.

[90] In reviewing the subject template entered into evidence herein as exhibit #1, I note that there are many blanks on the form to permit the officer to record any and all observations made by him relative to a specific scenario and a particular driver. It is, in my view, reasonable to infer that any pre-determined statements on the template are, in fact, accurate and reliable, provided that they were not amended or struck out by Officer Bendiks. In this regard, in the absence of any specific evidence which would suggest that the notes made by the said officer on the subject template relative to the subject charge are unreliable, I conclude that the production of the said notes, including the pre-printed parts of the template, constitutes adequate disclosure of the anticipated evidence of Officer Bendiks, sufficient to meet the constitutional standards established through the application of section 7 of the Charter.

[91] It should be noted that in reaching my conclusions, I have followed the reasoning of Madam Justice Woolcott in Regina v. Persaud, supra, which I have found to be persuasive. As the jurist noted, the investigating officer testified at trial using notes prepared on a template to refresh his memory of the relevant events. While the description of the contents of the notes stated in the case was imprecise, it would appear that the template set out a number of pre-printed assertions normally related to the offence of speeding and that the investigating police officer simply filled in the particulars of the investigation related to each individual case in the variable fields of the template. As stated above, the said appellate justice found that even though the police officer testified with the use of a template which contained a record of not only what the officer observed at the relevant time but also a number of pre-printed statements outlining the essential aspects of the offence of speeding, to refresh his existing memory of the events, she nevertheless upheld the decision of the trial Justice of the Peace finding that the Justice's decision to rely on the police officer's evidence in the circumstances, was acceptable.

[92] In reasoning that the fact that the police officer made reference to a template containing pre-determined assertions to refresh his memory of the subject events, did not adversely affect the reliability of the police officer's evidence, Madam Justice Woolcott also concluded that the notes used by the police officer during his testimony constituted both fair and adequate disclosure of the prosecution's case. It is apparent that in making this finding concerning the issue of disclosure, the jurist accepted the notion that the evidence in this proceeding was the testimony of the officer based upon his memory, as refreshed by the notes contained within the template, rather than the contents of the template itself. Justice Woolcott's careful reasoning in this case supports the general proposition of law that the very fact that an officer's notes of an event may be designed in the form of a template containing some pre-written material to remind the officer to make note of certain aspects of his or her investigation, should not serve to diminish the prosecution's use of such notes as a method of disclosing his/her anticipated evidence in any particular case.

THE DECISION

[93] As stated above, I have found that during this voir dire, the applicant has failed to meet its burden of proving that the prosecution has failed to provide full and adequate disclosure of all relevant information pertaining to the subject charge of speeding, to the applicant, so as to permit him to make full answer and defence to the charge. In reaching this conclusion I am satisfied that the production of the template containing all of the investigative notes made by Constable Bendiks, constitutes full and adequate disclosure of the officer's anticipated evidence relative to the subject speeding charge, in the context of section 7 of the Charter and the dicta of the Supreme Court of Canada in Regina v. Stinchcombe, supra.

[94] In light of my findings, I am satisfied that the applicant has not proved, on a balance of probabilities, that his right to make full answer and defence, has been denied by the actions or omissions of the Government of Ontario through the City of Burlington, relative to the subject speeding charge. The applicant has not, therefore, shown that his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, has been violated.

[95] The application herein for an order staying the subject speeding charge, pursuant to subsection 24(1) of the Charter is therefore denied.

Released: September 17th, 2013

Signed: "Justice of the Peace Kenneth W. Dechert"

[1] Regina v. Chaplin, [1995] 1 S.C.R. 727 (S.C.C.), at p. 742.