Court Information
Ontario Court of Justice
Date: 2017-07-28
Court File No.: Newmarket 4911-999-00-3896704B-00
In the Matter of: An appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Parties
Between:
Region of York on behalf of Her Majesty the Queen Appellant
— AND —
Konstantine Boukaras Respondent
Court Details
Before: Justice S.C. Armstrong
Heard on: July 14, 2017
Reasons for Judgment released on: July 28, 2017
Counsel:
- H. Saamen, counsel for the prosecution
- N. Gagliardi, agent for the defendant K. Boukaras
On appeal from: A dismissal of a charge by Justice of the Peace F. Mora on December 7, 2016
Judgment
ARMSTRONG J.:
Introduction
[1] On June 3, 2015, Konstantine Boukaras was charged with failing to stop at a stop sign contrary to section 136(1)(a) of the Highway Traffic Act. His agent entered a not guilty plea on his behalf at his trial on December 7, 2016. The prosecution's only witness was a police officer.
[2] Shortly after the police officer took the witness stand, the presiding justice of the peace ruled that the officer had to have an independent recollection of the events for the trial to continue. Since the officer did not have such a recollection, and the cross-examination of him would be limited accordingly, the justice unilaterally dismissed the charge immediately after he made his ruling.
[3] For the reasons that follow, the appeal is allowed and a new trial ordered.
The Law
[4] As noted in my judgment in R. v. Thom, [2010] O.J. No. 4607, it is well-established that notes, documents and other testimonial aids can be used for two purposes: (1) to provide a record of past recollection where the witness has no present memory of events; or (2) to refresh a witness's present memory of events. The qualification of notes procedure is designed to determine the purpose for which a witness requires the notes.
(1) Past Recollection Recorded
[5] Where a witness has no memory of the events, the notes themselves constitute a record of a past recollection and become admissible evidence themselves as an exception to the hearsay rule, if four conditions are met. These conditions are summarized in R. v. J.R., [2003] O.J. No. 3215 (C.A.), as follows:
Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if available.
Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.
[6] These conditions need only be met in the case of a past recollection recorded because the notes themselves become evidence and are entered as an exhibit at a trial.
(2) Present Memory Refreshed
[7] On the other hand, where a witness has a recollection of the events and wishes to use notes or other documents to refresh their memory, the evidence is the refreshed memory of the witness, not the notes.
[8] A witness may use any notes or document to jog their memory. It does not matter who made the notes or when they were made. Any external source or event may be used to refresh a witness's memory: R. v. K.G.B. (1998), 125 C.C.C. (3d) 61, paras 18-20 (Ont. C.A.).
[9] When a witness refreshes their memory from some external source or event, such as notes, the witness has a present recollection of events, albeit one that has been refreshed. It is up to the trier of fact, whether a judge or a justice of the peace, to determine how reliable and truthful that recollection is. In other words, after the witness has given their testimony, it is up to the trier of fact to determine the weight to be given to the witness's evidence.
The Proceedings
[10] In the present case, the police officer stated that he made typed notes, that he made them immediately after the ticket was issued when the events were fresh in his mind, that he made every reasonable effort to ensure they were accurate and complete, that they were saved in the York Regional Police computer system, and that no changes had been made to them since he made them.
[11] The officer stated that he would like to refer to the notes to refresh his memory. However, he then stated that he did not have any recollection of the relevant events independent from what was written in his notes. The notes were marked as Exhibit 1.
[12] However, the officer went on to state that, even though he had no recollection of the specific events, such as pulling the vehicle over, issuing the offence notice, etc., he had an independent recollection of his general enforcement duties and set-up on the relevant day, of the intersection in question and the fact he was there because it was a "complaint area".
[13] After hearing the submissions of the prosecutor and the defence agent, the justice of the peace took a short recess. When he returned to the courtroom, he announced that the trial could not continue because "the officer has to have an independent recollection of events", that the notes are only "to support the evidence", "to refresh his memory". He stated that without an independent recollection, it would be "difficult, perhaps impossible" to cross examine him and to elicit clear evidence as to what occurred on the day in question. He proceeded unilaterally to dismiss the charge.
Analysis
[14] In my opinion, the justice of the peace committed reversible legal error in dismissing the charge because the officer had no independent recollection of the events that brought the defendant to court. He failed to take into account the evidentiary rule of past recollection recorded and dismissed the charge without reason.
[15] The officer's notes filed as Exhibit 1 were properly admitted into evidence as a record of his past recollection of the incident that brought the defendant to court. In other words, the notes were entered as a record of a past recollection and became evidence themselves as an exception to the hearsay rule, the four conditions for admissibility having been met. Since the officer had no recollection of the events they record, cross-examination might well have been more limited than if he had an independent recollection of the events and used his notes to refresh his memory. However, this was no reason to dismiss the charge.
[16] The officer did not get the opportunity to testify apart from the questions about his notes and his independent recollection, or lack of it. The examination of the witness should have continued. Although he had no independent recollection of the specific events that brought the defendant to court, he could still have provided relevant evidence. For example, he could have been asked about any short forms in his notes; he could have been asked which municipality the event occurred in, if jurisdiction was in issue; and he could have been asked broader questions about the intersection in question, the set-up that day and the reason for it.
[17] At the conclusion of the trial, it would have been up to the justice of the peace to determine the credibility, reliability and weight, if any, to be given to his evidence.
[18] For these reasons, the appeal is allowed and a new trial ordered.
Released: July 28, 2017
Signed: Justice S.C. Armstrong