Court Information
Date: February 1, 2017
Ontario Court of Justice Toronto, Ontario
Her Majesty the Queen v. Fernando Moreira-Martins
Counsel:
- A. Cahill for the Prosecution
- G. Faulkner for the Defendant
Before: J. Opalinski J.P.
Heard: June 21, 2016 & December 5, 2016
Delivered: February 1, 2017
Reasons for Judgment
Preliminary Motion
[1] The Agent for the defendant has brought a preliminary motion objecting to the officer being able to rely on his notes on the grounds that: the notes are a template created for other purposes or in advance of the incident; may or could have been changed from the time that the notes were created; and were not made particularly in relation to this incident.
Issue
[2] Should the officer be allowed to rely on his notes to refresh his memory?
Evidence of the Officer
[3] Officer Blair of the Toronto Police Services was questioned by the agent for the defendant with respect to his notes being qualified. His answers may be summarized as follows:
a) The officer made the notes, that he wishes to rely on in their entirety, immediately after the defendant was stopped on October 5th, 2015. They were made on a computer. Upon completion of the notes, the evidence was locked by the system and the notes were then saved.
b) There were no additions, deletions or alterations made to the notes and he has a 'lot' of independent recollection of the event.
c) He is requesting that he review the notes to refresh his memory with respect to certain details.
d) The officer uses a template, which was specifically created for this given location sometime before. The template is located on the hard drive of his computer. He then proceeds to cut and paste relevant information. While the template does have certain information about a particular location, he tweaks the template every time with regard to: where he was located and the observations he makes about the location, its signs, any obstructions to his view, the weather etc. The template is merely used as a template.
e) He further checked for any obstructions. This is done each time he sets up his vehicle to do enforcement and if there had been any obstructions at this location, he would not have been doing enforcement there.
f) The purpose of creating the template in advance is that it saves the officer 'lots and lots of time'.
g) The portion of the officer's notes that describes how the officer could see through the hedge was created prior to the offence date, but checked and verified by the officer on the date of the offence.
h) The portion contained in his notes that indicates where his vehicle was located is created on the day of the offence and not at some time prior to the offence.
Submissions by the Prosecution
[4] The submissions of the Prosecution may be summarized as follows:
a) While at first glance the use of a template to create notes that in their inception appear to be 'somewhat boilerplate', after the officer has in each given case reviewed, changed and tweaked the template, these notes are no longer boilerplate notes but become case specific. These notes now have been recreated and pertain to the individual facts of the case at hand.
b) What distinguishes these notes from notes referred to in other cases is that the template is not being used to literally fill in the blanks. Such notes have been referred to as "canned evidence", which is an unreliable and inaccurate depiction of what occurred.
c) In the Murphy decision (citation not provided), the court made reference to the fact that a great number of acronyms and the use of short-forms contained in the officer's notes were difficult to decipher and the contents of the template had not been changed. In particular, one essential element of the speeding offence, namely, that the device was in good working order was pre-written in the template with no case specific comments having been inserted. Furthermore, the officer read from his notes, which constituted the great majority of his evidence. Notes should not be intended to be entered as evidence; otherwise the bar required for their admission would have to be much higher. They should merely be used as an aid to refresh the officer's memory and not as evidence in and of themselves.
d) The prosecution is merely asking that the officer be allowed to use his notes to refresh his memory.
Submissions by the Defence
[5] The submissions of the defendant's agent may be summarized as follows:
a) The officer should not be allowed to refer to his notes as they were created for other purposes and in advance of the actual offence date, then stored in his computer and 'passed into these notes'.
b) The defendant's agent alleges that the information may or could have been changed from the time that the notes were created. Such evidence has been referred to as 'canned evidence' and the officer should not be allowed to rely upon such evidence.
c) Furthermore, it is asserted that the officer indicated that a portion of his notes were made in advance of the offence and a portion were made directly in relation to his observation. The typed notes would still constitute a template as the officer is merely filling in the blanks. These notes, it is argued, cannot refresh the officer's memory as to this specific incident. They pose a threat to accuracy as they were not made at the time of the incident and should not be used by the officer to refresh his memory. Indeed the officer, according to the defendant's agent did not know when they were made.
The Law
[6] The defendant has made reference to the case of R. v. Murphy where in the court took umbrage with the notes being used by the officer. The trial court had allowed the officer to rely on his notes. However, the appeal court held that the officer had used these boiler plate notes, to which he had merely filled in the blanks, not to refresh his memory. He had read from these notes. The court described the use of such notes as 'canned evidence' and went on to say that in a criminal matter the court would not have convicted on this form of evidence. The officer had zero memory. Notes are to be used by the officer as an aid to refresh his memory and not as evidence in and of themselves. The court also commented on these notes in that they were full of acronyms that were not understandable, decipherable and failed to constitute adequate evidence. A new trial was ordered so that proper evidence and not 'canned evidence' could be presented.
[7] The prosecution presented two cases to the court, R. v. Mahaney [2005] O.J. No. 3840 and R. v. Persaud [2011] O.J. No 3312.
[8] In R. v. Mahaney, supra, the issue before the court was whether or not the trial justice erred in law in not permitting the officer to refer to his notes in order to refresh his memory with regard to the particulars of a speeding offence. The notes were created from a template developed by the officer as a response to complaints about his poor handwriting. The officer would fill in the blanks on the template, print out the note and glue it to the back of the ticket. This material would then be disclosed to the defendant. The court made the finding that the officer's notes or the templates they may rely on are not evidence but are used merely as an aid to refresh his memory as to time, place, date etc.
[9] There are three conditions precedent that must be met for officers to be allowed to use their notes as an aid in refreshing their memory:
The notes or aids were made at the time of the incident or shortly thereafter;
There were no changes, additions, alterations or deletions since the making of the notes originally; and,
The officer has an independent recollection and needs his notes to refresh his memory. (para 5)
[10] Indeed, the court noted that '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'. (at para 7)
[11] In R. v. Persaud, supra, the court held that properly qualified notes could be used by the officer to refresh his memory. The court distinguished R. v. Murphy, supra, and held that the prosecution's case 'was not founded on original evidence when the evidence from the officer appeared to be his reading into the record from his notes that were based on a template which was rife with acronyms which the court in that case could not decipher'. (at para 9) The defence in R. v. Persaud, supra, just as in R. v. Mahaney, supra, argued that because part of the notes were created from a template prior to the date of the offence, the officer should not be permitted to rely on this evidence.
[12] The court in R. v. Persaud, supra, stated that witnesses are entitled to use properly qualified notes as memoranda to refresh their memory in giving evidence at trial. While it was thought in the past that 'contemporaneity in the making of the notes or memorandum was crucial to its use', it is now accepted in law 'that this goes to weight'. (at para. 12) The court held that the evidence of the officer was properly weighed and relied upon by the trial justice.
[13] I note that in the case of R. v. Colangelo, 2007 ONCJ 489, [2007] O.J. No. 4070, the issue of having a prior recollection of an event was dealt with. The court concluded that the officer or any witness for that matter does not have to have a recollection of the events in existence prior to referring to something that jogs their memory. In other words, notes may be used as an aid in jogging that memory and the prior recollection need not exist for those notes to be used for the specific purpose of refreshing that memory.
Analysis
[14] In the case at bar the court notes that we are at the stage of qualifying the officer's notes so that he can refer to them to refresh his memory. Unlike all the cases noted above, we have not commenced the trial, nor relied on the evidence of the officer in order to render a verdict. The issue before the court is whether or not he should be allowed to rely on the notes.
[15] Today's practice in general appears to be such that an officer will type his or her notes in a computer making any changes that may be necessary and upon being finished, these notes will be uploaded into a system. The action of uploading these notes has the effect of locking them so that no further changes can be made.
[16] Templates are used by officers when generating notes. However, what transforms the template into notes is the action of the officer placing into the template material that is specific to the case before the court. The notes should be clear and understandable. The template merely assists the officer in creating these notes. It is a tool akin to a check list. Once he tweaks the template, the template becomes case specific and no longer constitutes a template but becomes the officer's notes. This is the digital reality that we live in today, a reality that was not prevalent in 2004, when the case of R. v. Murphy, supra, was decided. In that case, the officer was using a template, making little attempt to change it or was filling it with acronyms that were not understood by the court and from which he was reading into the record verbatim. Such evidence was termed as 'canned evidence' in that the court canned it or in other words did not permit its use.
[17] We need to bear in mind the following issue: can the notes made by the officer be relied upon as an aid in refreshing his memory. The fact that these notes were commenced by electronically filing in the blanks of a previously generated template is not so crucial as to whether or not a court should allow the officer to rely upon them. This can only be done if the three conditions precedent, as referred to in R. v. Mahaney, supra, have been met. Although the court notes that R. v. Colangelo, supra, stands for the principle that an officer or witness does not have to have a prior recollection for him or her to use their notes to refresh their memory.
[18] In the case at bar the officer gave evidence that the notes were made at the time of the offence; there were no changes to the notes after they were made; and he has a lot of independent recollection of the event. He has requested that these notes be used as an aid in refreshing his memory. He uses the template to save himself 'lots and lots of time'. The notes are not to be used as anything more than an aid in refreshing his memory. They are not evidence in and of themselves. Nor will the court permit them to be used as evidence in the context of what the court is being asked to determine.
[19] The court further notes, as indicated in R. v. Persaud, supra, that the issue of 'contemporaneity in the making of the notes' as being crucial in the determination of whether or not the notes should be permitted to be used, is not as significant today. The law accepts that contemporaneity now 'goes to weight' placed upon the evidence.
[20] The court finds that the test for permitting a witness to rely on his or her notes to refresh their memory has been made out.
Disposition
[21] For the reasons set out above, the court finds that the officer may use his notes as an aid in refreshing his memory and will give these notes their appropriate weight. The officer indicated that he had a 'lot of independent recollection of the event'. The court will not permit the notes to be entered as evidence, as the threshold for doing so is much higher and that threshold has not been met.
Dated the 1st day of February, 2017, at the City of Toronto
"J. Opalinski"
Joanna Opalinski J.P.