Court File and Parties

Date: October 3, 2018

Court File No.: 1260-999-00-7214097B

Ontario Court of Justice

Between:

Her Majesty the Queen

Halton Court Services ex. Rel.

Prosecutor

– and –

Bradley Verigin

Defendant

Ruling on Defence Motion: Re: Use of Officer Notes

Heard on: June 6, 2018

Motion Judgement filed: October 3, 2018

For the Crown (Prosecution): J. Stewart

For the Defendant: A. Smart

Gerry Manno Justice of the Peace Central West Region

Materials Cited

Statutes Cited

• Ontario Highway Traffic Act, R.S.O. 1990, c. H.8, s. 78.1(1)
• Provincial Offences Act, R.S.O. 1990

Reported Cases

• R. v. Fliss, 2002 SCC 16, [2002] S.C.J. No. 15 (S.C.C.)
• R. v. Gadzo, [2009] O.J. No. 1286 (O.C.J.)
• R. v. K.G.B., [1998] O.J. No. 1859 (O.C.A.)
• R. v. Shergill (1997), 13 C.R. (5th) 60 (Ont. Gen. Div.)
• Fleming v. Toronto R.W. Co., [1911] O.J. No. 40 (O.C.J.)
• Durham (Regional Municipality) v. Zhu, [2011] O.J. No. 1797 (O.C.J.)

Unreported Cases

• R. v. Kelly Beatty-Middleton 2017 (May 4th), (O.C.J.)
• R. v. Romulus Ban 2017 (March 2nd), (O.C.J.)
• R. v. Jordache Dos Remedios 2018 (August 30th), (O.C.J.)
• R. v. Mario Ariosa 2017 (August 22nd), (O.C.J.)

Books

• S. Hutchinson, Rose D., Downes, P., The Law of Traffic Offences 2nd ed. (Carswell, 1998)
• Best, A., Wigmore on Evidence 4th ed. (Aspen Publishers, 1995)
• Libman, E., Libman on Regulatory Offences in Canada (Earlscourt Press, 2002)

Magazines

• Lolly P., C Van Jaarsveld, H. Potts, J. Wardle "How Habits are Formed: Modelling Habit Formation in the Real World" (2009), European Journal of Social Psychology

Introduction

[1] This is a Provincial Offence matter (POA) under the Highway Traffic Act (HTA) with the Defendant Mr. Bradley Verigin having been charged with "holding a handheld communication device" while driving on a Highway (as defined by the HTA), contrary to 78.1(1) of the HTA.

[2] The charge dates back to July 13, 2017 and the first date scheduled for trial was before me on June 6, 2018. The Defendant, though not present at trial, was represented by Ms. Smart – a paralegal registered under the Law Society of Ontario (LSO) formerly known as the Law Society of Upper Canada (LSUC).

[3] Ad incipio, and following arraignment, a plea of not guilty was entered. Officer Sturge, the charging officer and witness for the Prosecution took the stand and commenced with the usual process of qualifying the use of his notes.

[4] During the qualification of the officer notes, and based on the officer's replies to Ms. Smart's questions, the defence made application to the court that the officer should not be permitted to utilize his notes to refresh his memory. This was largely based on the fact that these were electronic notes (e-notes) and the officer failed to articulate or attest to both the security of those notes and the carriage of the notes between recording them at roadside and trial.

[5] In the prosecutor's terms the question was expressed as follows:

(a) Can the charging officer refer to investigative notes to refresh an existing memory if the notes have not been in his personal possession since the time they were recorded up until the time they were reviewed for trial? and/or;

(b) Can anyone else access and/or change the original notes from the time of input? (Prosecutorial Factum, page 2, para. 4)

[6] The arguments raised speak to the theoretical possibility of 5(a) and/or 5(b) above and it must be distinctly understood that there is no direct evidence that would suggest that the officer's notes have been altered or that anyone else other than the officer has actually accessed and reviewed these notes. Simply put, the officer, as a witness could not assure the court that the notes were not accessed by anyone else and/or who could make additions, deletions or other alterations to his notes.

Prosecution's Position

(Taken from Prosecution's Factum dated Sept. 27, 2018)

[7] The custody of investigative notes has been raised in our Courts, long before notes were produced electronically. In R. v. Gadzo, [2009] O.J. No. 1286, His Worship Cuthbertson examined this issue and provided persuasive reasons why the notes did not have to remain in the personal custody of the charging officer, up until the time of trial. The investigative notes in Gadzo (supra) were handwritten by the charging officer, in a Provincial Offence charge of speeding. The notes were submitted and under the control of the OPP Case Management personnel. The notes were then later transferred to the Court Case Manager at the Ontario Court of Justice, in preparation for the trial, and eventually made available to the charging officer for trial.

[8] His Worship Cuthbertson took direction from the dicta of MacLaren J.A, writing for the Ontario Court of Appeal, in Fleming v. Toronto R.W. Co., [1911] O.J. No. 40, whereby "a witness may refresh his memory by reference to any writing made or verified by him concerning and contemporaneously with the facts to which he testifies. ...The writing may have been made either by the witness himself, or by others, provided in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct."

[9] As well, His Worship also considered the reasoning in R. v. K.G.B., [1998] O.J. No. 1859. Osborne J.A. of the Ontario Court of Appeal reviewed the issue of witnesses refreshing their memories from statements made long ago to police. No suggestion was ever presented, in this case, that the witnesses had kept either the original or a copy of their statements. Further, the Court accepted that any document may be used to refresh a memory, and further that the document did not have to be maintained or under the control of the author.

[10] Further, His Worship considered the Supreme Court comments in R. v. Fliss, 2002 SCC 16, [2002] S.C.J. No. 15. ...that a broad range of instruments or stimuli may be used to prompt a memory from which evidence can be given. By accepting that an instrument such as background music or the sight of someone could stimulate a memory. The Supreme Court effectively acknowledged that a witness does not have to have control of this stimulus.

[11] Therefore, in his decision in Gadzo, supra, His Worship Cuthbertson in paragraph 14, determined "... that there is no requirement for a police officer or any other witness to have maintained personal control over her/his notes or any other instruments or stimuli used to refresh a memory."

A subsequent search of appellate decisions confirms that His Worship's finding in Gadzo (supra) has not been overturned.

[12] Upon the implementation of electronic or e-notes, a challenge was raised in Durham (Regional Municipality) v. Zhu, [2011] O.J. No. 1797. Here, the Court was asked to reject the request to allow the officer to use the electronic notes, given that there was insufficient evidence to believe these were the officer's actual notes. They had not been in his personal possession the entire time and the court could not be sure that there hadn't been any additions, deletions or alterations given that the officer did not know how the e-notes were stored, from the time of inputting the notes into the computer, until the officer received a copy of them on the trial date.

[13] His Worship LeBlanc in the Zhu (supra) trial heard evidence that the charging officer had an independent recollection of the events and had not made any alterations or deletions to the notes. The notes had been "electronically submitted" and allowed the officer to "read only" after they had been submitted. The Officer recognized the notes as being his own, but acknowledged that the electronic notes were maintained by the police service agency and made available to him at trial. His Worship LeBlanc acknowledged that there did not appear to be any case law on the subject of use of "electronic" notes, but drew on the historical case law by higher courts on the subject in general.

[14] After his analysis, His Worship LeBlanc found that there was no reasonable basis for concern about the continuity of the electronic notes. Leeway could be given to allow witnesses to refresh their memory with an aide memoire. It is up to the trier of fact to determine what weight should be given to the evidence. There was initially a challenge to the issuance of electronically generated tickets and more specifically to the 'electronic signature' of the investigating officer. Both matters were advanced through common law. With the advancements in technology and with everyone becoming more 'comfortable' with the process, electronically generated 'tickets' and notes have become commonplace.

[15] In response to the defence cases submitted within their factum, the Prosecution would submit that each case turns on its own set of facts and the understanding of the specific officer regarding the technical aspect of electronic security. Because the utilization of the electronic note process is a new format, certain Officers were not familiar with the technical storage and securement features of the electronic system. It would appear that the issue is one of training, as these transcripts are but four out of many other trials, where the evidence pertaining to the e-notes was sufficient to satisfy the requirements of the Justice of the Peace.

Notwithstanding the training issue, the evidence of an Officer that:

[16] He or she has an independent recollection of the incident, he or she made the notes during or shortly after the event, that he or she has since reviewed the electronic notes, provided by the police service, for the trial, that the printed notes are not inconsistent with the original notes entered, should be sufficient evidence for a Judicial Officer to accept their authenticity and allow the officer to refer to the notes as an aide memoire.

The Prosecution further argues, that if the notes at trial are compared to the notes produced in disclosure, the issue should be at an end.

Referencing the case at bar; Officer Sturge testified that he made the notes shortly after the offence and that there had been no changes, additions or deletions to those notes. He asked to refer to them only to refresh an existing memory.

When applying the dicta of the cases stated above, there should be no reason to go "behind" this testimony. The Officer admits that he does not retain custody of the notes from input to use at trial, but his assertion that on his review, he sees nothing inconsistent with the notes memorialized by him at the time of the offence.

[17] The Prosecution further argues, that if the notes at trial are compared to the notes produced in disclosure, the issue should be at an end. Referencing the case at bar; Officer Sturge testified that he made the notes shortly after the offence and that there had been no changes, additions or deletions to those notes. He asked to refer to them only to refresh an existing memory. When applying the dicta of the cases stated above, there should be no reason to go "behind" this testimony. The Officer admits that he does not retain custody of the notes from input to use at trial, but his assertion that on his review, he sees nothing inconsistent with the notes memorialized by him at the time of the offence. The Prosecution concludes by asserting that the officer should be permitted to refer to his notes to refresh his memory.

The Defendant's Position

(From the Defendant's Factum filed September 17, 2018)

[18] The Prosecution began their case by calling their only witness Officer Sturge. The officer began to qualify his notes. He testified that he inputted the notes via "e-notes" in his computer located in his police cruiser. He testified that there were no alterations or deletions to those notes.

[19] On cross-examination he was questioned on his knowledge of the security of the notes. He testified that once he inputted his notes they were electronically filed and then sent back to him when he received a court notification of trial. Those notes were then in his email. Further cross-examination revealed that he in fact had very little knowledge of the process and couldn't say for certain that no one else had access to the notes to make any alterations or deletions. He believed they did not as that is the information he was told but could not attest to this with 100% certainty.

Has the Crown presented evidence that the officer has knowledge of what happens to the notes after they leave his possession? The testimony of what happened to the notes in between the officer's possession of such notes was largely based on assumptions and hearsay. The prosecutor in this case attempted to give evidence that the notes were password protected, however the defence submitted that that is was not admissible and improper for the prosecution to present that evidence. In R. v. Ban, Justice of the Peace Morin found that without the officer having knowledge of how the system works in terms of filing, printing of and receiving of the electronic notes; if there's a password, and if no one but the officer is able to make any alterations to those notes, then the notes were not allowed to be used (see R. v. Ban, pg. 6 para. 7-17).

In R. v. Beatty-Middleton, the prosecution conceded that the officer cannot ensure the court that the notes were accurate as he wrote them on that day, with no one else having access to them. The defence concluded that there would be some concern regarding the accuracy of the notes. Justice of the Peace Fletcher agreed and ruled that the officer was not permitted to use the notes (see R v. Beatty-Middleton, page 6 para 12-24).

In R. v. Dos Romedios the officer had very little knowledge of the process of e-notes and who may have access to them, yet his original testimony would appear to meet the test. He stated that there had been no alterations or deletions to the notes. The Prosecution in that case also concluded that without a thorough knowledge and without being able to say for certain that nothing had happened to those notes since he wrote them, then he should not be able to refer to those notes (see R v. Dos Remedios, pg. 7, para 24-28).

The Defendant went on to say that it is common law that an officer is required to qualify his notes through testimony if he/she wishes to utilize those notes to refresh his/her memory during a trial. In qualifying the notes, the test includes that they be prepared by the officer, that there have been no additions, alterations or deletions, that they were made at the time of the offence or shortly thereafter and that he/she has an independent recollection.

The Defendant asked how could the court accept the officer's testimony that there have been no alterations or deletions to his notes if the officer was unaware of what happened to those notes when they were out of his possession? In R. v. Ariosa, His Worship MacPhail said "the witness must be able to provide the court with sufficient information to be able to generally describe the features or attributes of this system, and give evidence as to the security and permanence of his original entries or record." (see Schedule A, R. v. Ariosa, pg. 7 para. 15-20).

The Defendant's factum concluded by asking the court to rule that the officer notes could not be used to refresh the officer's memory.

Analysis

[26] The rule on refreshing memory falls into two categories – in Wigmore terminology the two categories are a 'present memory revived' vs. a 'past recollection recorded'.

[27] A present memory revived generally occurs when the reviewing of a note 'jogs' the memory such that the event as it happens is recalled into memory. A past recollection recorded occurs when the witness is unable, notwithstanding a memory aid, to recall the event in question, but is able to say that on an earlier occasion, he/she had a perfect recollection of the incident, and at that time truly recorded the same (see Wigmore).

[28] In the latter example, the notes could be made an exhibit and the trier of fact could appropriately weight the evidence at trial. One limitation of receiving the notes in this fashion is that there would be no ability of the Defendant to be able to cross-examine on that evidence, in short, offending the 'right of Confrontation' as it is commonly referred to in the U.K and the right to cross-examine in North American courts (see Law of Traffic Offences, pg. 94).

[29] Prior to the advent of e-notes, the process of refreshing an officer's memory typically began with the qualification process of his/her notes which included the following questions:

Q. On [date of offence] I understand you were employed as a [police/poa officer]?

A. Yes.

Q. Did you make any notes regarding the matter before the Court?

A. Yes.

Q. When did you make these notes?

A. At the time of [and/or immediately following] the offence. They are in my own handwriting.

Q. Have you made any additions, deletions or alterations to these notes?

A. No.

Q. Why do you wish to refer to those notes?

A. In order to refresh my memory of the events and/or details or particulars.

[30] The key points in this exchange are that the officer attested to the fact that he/she had an independent recollection and that the notes were used only to refresh their memory as to particular details not ordinarily kept in one's memory. This was due to the fact that there would normally be a significant time span between the generation of the offence to the date of trial. It also presumed that many officers wrote many certificates on an ongoing basis and given that volume, reference to such notes or memory aides would assist them in recalling specific details. In theory, the system was devised to balance the practical need to use one's notes to refresh one's memory against the careful consideration of what hearsay should be permitted, if at all, at a trial. The Court relies on the assertion that the witness maintains an independent recollection and that they provide viva voce evidence attesting to that recollection rather than simply reading the notes verbatim.

Transition to Electronic Notes (e-notes)

[31] The police forces have been changing their approach from hand-written notes and note taking to a system that relies on the advancements in technology that affords an officer the ability to simply enter such notes at roadside on their onboard computers. Once entered, those notes are contained on some sort of centralized electronic database and recalled for the officer at or near the date of trial. These notes should also form a portion of the Disclosure that would be provided to Defendants who have requested a trial so that they may make full answer and defence to their charge.

[32] During the period of transition to the e-note system, officer understanding of the new system had been inconsistent and the subject of on-going training. During this period of transition in some cases, the questions and answers to qualify such notes was characterized by the following exchange:

Q. Does anyone else have access to these notes?

A. I can't say.

Q. So you don't actually know if they've ever been altered or not?

A. No, I cannot say that. (see R. v. Beatty-Middleton transcript line 20; also R. v. Ariosa, transcript, pg. 3)

[33] The specifics of such an exchange varied from trial to trial but all four of the OCJ cases proffered by the Defendant took a similar trajectory. In each case, when the issue was addressed at trial, the Justice of the Peace ruled that the officer would not be able to utilize such notes which was quickly followed by the Prosecution exercising their jurisdiction to withdraw the charge all together. There was no argument put forth by the Prosecutors and none of the Parties argued to have the notes entered into the trial as an Exhibit.

Here are some of the specifics for each of the Defendant cases before this court. In R. v. Ariosa, His Worship MacPhail indicated that the witness (officer) had to provide the court with sufficient information to be able to generally describe the features or attributes of the e-note system and give evidence as to the security and permanence of the officer's original entries (see schedule A, R. v. Ariosa, pg 7 para. 15-20).

[34] In R. v. Ban, H.W. Moin ruled that an officer lacking knowledge in how the system works for the e-notes, including filing, printing of, and retrieving those notes…on whether the notes were password protected etc. (see R. v. Ban pg. 6, para. 7-17).

[35] In R. v. Beatty-Middleton, the officer could not assure the court that such notes were accurate and that no one else had access to these notes. Justice of the Peace Fletcher ruled that the officer was not permitted to use those notes. The charge was subsequently endorsed as withdrawn.

[36] In R. v. Dos Romedios, though the officer testified that there were no additions, deletions or alterations to those notes, the inability of the officer to explain the 'chain of custody' for those notes and/or any security features substantially weakened his assertion that there had been no additions, deletions or alterations to those notes. As with the other cases above, the Prosecution used its discretion and withdrew the charge against the Defendant.

[37] Both sides agreed that the issue arose out of the need for further officer training so that in future they may be able to answer the qualification questions with 'sure footing.'

[38] In general, there is always a period of adjustment when one has to adapt to a new system, new location, new job, etc. During the period of transition, some feel varying degrees of discomfort. Others may experience stress, which is normally mitigated by training, education and experience.

[39] Phillipa Lally et. al. studied such transitions and published a ground-breaking study in 2009. This evidence-based study concluded that an individual normally requires 66 days (plus or minus) to become comfortable with a new system. Before the publication of this study, there were many estimates that were 'thrown around' in a cavalier fashion before this study suggesting that it took only 21 days to become comfortable with a new system. However, this latter estimate was discounted since it was not evidence based and simply based on conjecture.

[40] In fact since these unreported cases mentioned above and with the advent of additional training given to officers the current line of questioning has taken the following pathway:

Q. Do you have an independent recollection?

A. Yes I have an independent recollection, my notes were made contemporaneously with the event or shortly thereafter.

…the notes were electronically filed but are password protected giving access only to me and there have been no additions, deletions or amendments to my notes and I require those notes to simply refresh my memory as to specifics.

[41] Though the system that was adopted from the outset was indeed password-protected and secure, the officers testifying lacked the training foundation to be able to make that assertion to the courts.

[42] The imperfections in this question-answer exchange (see para. 32 above) was the hallmark of such transitional cases, including the matter before this court providing fertile opportunity for the Defendants to argue against the use of such notes.

[43] The arguments presented were all of a 'take it or leave it' nature or 'all or nothing'. In other words, the Defence position was to either agree that such notes could be used or to ask that the Courts disallow the use of such notes.

[44] Though the Defence had framed a very compelling argument, the court was persuaded by the higher court rulings expressed in the reported cases above. For instance in Fleming (supra) the Justice indicated that the notes themselves could be made by the witness or others but if the latter prevailed, then it was up to the witness to read any input when the facts were fresh in his/her memory and he knew the statement to be correct. This was long before the advent of e-notes. H.W. Cuthbertson used this argument in R. v. Gadzo in allowing the notes to be used at trial.

[45] The Ontario Court of Appeal in R. v. K.G.B. came to the conclusion that any document could be used to refresh a memory and that such a document did not have to be maintained or under the control of the author.

[46] In Fliss, the Supreme Court ruled that a broad range of instruments or stimuli may be used to prompt a memory. The Supreme Court of Canada also acknowledged that a witness need not have control of this stimulus.

[47] In particular, in the POA, the overall intent is that the courts place more emphasis on substance over form (in general). The idea being that matters should not be dismissed on the basis of a technicality and the courts should strive to fulfill the Defendant's desire which is to have a trial and allow the evidence to be tabled for consideration. As long as the notes belong to the witness and as long as he/she has an independent recollection of the event, memory aides should be permitted unless the Defence can argue that the use of such notes would result in an incurable prejudice and/or result in the Defendant not being able to make full answer and defence.

[48] The notes had been disclosed, the officer had not attested to the fact that any alterations were in fact made. He had an independent recollection and that in-itself should be enough for the court to proceed to hear such evidence at trial. Any imperfections in the evidence, the notes or in the qualification might create a pocket of reasonable doubt but that would only be reached if the notes were permitted entry into the trial and that the trier of fact was given an opportunity to exercise its discretion to appropriately weight the evidence it heard to reach a fair and impartial conclusion or ruling. Obviously this would have to be balanced and exercised carefully on a case-by-case basis.

[49] In summary and as mentioned above, this case is distinguished from the other cases offered by the Defendant in that this court is persuaded by the rulings of some of the prosecution led cases in the OCJ but more importantly by the upper courts ruling which binds this court in principle using the concept of stare decisis.

[50] As well, in the four Defendant offered cases, the prosecution used its discretion to withdraw the charges before the court and that is not the pathway they are taking with this matter. In this case the Prosecution provided a response to the Defence motion filed.

[51] Though less important a point, this court also recognized that though the officer could not truthfully attest to anyone else having access to those notes nor could he say whether someone else had an opportunity to alter such notes, there was no direct evidence led that the notes had been altered nor had the court heard of any additions, deletions or other amendments that had actually been made by others and not by the officer himself. Having said that, this case is more about the apprehension or theoretical possibility that such actions could have occurred, which has led to the court's consideration of this motion.

[52] In conclusion it is up to the trier of fact to assess the officer's ability to recall independently from his notes. This is done by consideration of a number of factors including whether or not the officer reads his notes verbatim, whether or not he attests to having an independent recollection, etc. It is not a perfect system and the courts rely on the officer telling the truth about their independent recollection. The courts recognize that in many instances officers are capable of reviewing their notes just before they enter the courtroom and the science of attempting to discern between that a note recently reviewed and the officer's independent recollection without such a review can be complex. However, the Justice operates as a gatekeeper for that evidence and must constantly assess which evidence should be permitted and furthermore how to appropriately weight that evidence once admitted. In truth, evidence weighed must be evidence heard.

Ruling

[53] For all of the above reasons, this court rules that the officer may use his notes simply to refresh his memory and to notify the court should there be any notations on his notes that are not his own or amended post traffic stop.

[54] All respectfully submitted this 3rd day of October 2018.

Gerry Manno Justice of the Peace Central West Region

October 3, 2018