Court File and Parties

Ontario Court of Justice

Date: 2020-09-04

Court File No.: Newmarket 19-08915

Between:

Her Majesty the Queen

— and —

Daniel Cavalieri

Before: Justice Edward Prutschi

Heard on: September 3, 2020

Reasons for Judgment released on: September 4, 2020

Reasons for Judgment on Motion to Permit Witness to Refresh Memory

Counsel:

• Robert DeChellis, counsel for the Crown
• Peter Lindsay, counsel for the defendant Daniel Cavalieri

PRUTSCHI J.:

[1] Cst. Dwayne Allen is an OPP officer. On September 27, 2019 he conducted a routine traffic stop of a suspect motor vehicle which developed into an impaired driving investigation and a charge of 80+ facing Daniel Cavalieri.

[2] At the outset of trial moments into the testimony of the very first witness, Mr. DeChellis for the Crown sought to permit Cst. Allen to refresh his memory of the events of September 27, 2019 by referencing both his handwritten memo book notes, and a typed General Report.

[3] Mr. Lindsay for Mr. Cavalieri took no issue with the officer using his memo book but objected to any reliance on the General Report. A brief voir dire was conducted in which Cst. Allen was examined and cross-examined. Both counsel made submissions to the court.

[4] The court adjourned for the lunch recess to consider the issue. For the reasons that follow, I will allow Cst. Allen to use the General Report to refresh his memory.

THE FACTS

[5] In addition to traditional police notes taken in an official memo book, Cst. Allen also generated a "General Report". This document is created by the officer calling in to an automated voicemail line. The officer identifies himself by badge number and password and then selects a priority level from one to nine with one being the most urgent request and nine being the least urgent. This priority level impacts how quickly a civilian data entry transcriptionist transcribes the call into writing. Once typed the report is submitted back to the officer for verification prior to finalization.

[6] Cst. Allen testified that in his general experience the transcription created for these reports was accurate. If the transcriptionist was unsure about any words or phrases, that uncertainty would be noted in the draft being verified by the officer before final submission. The turnover rate was generally quick. The fastest he had ever seen transcription commence was within a half hour of submission.

[7] In this particular case Cst. Allen could not recall precisely when he phoned the voicemail dictation line, but he knew that it was before the end of his shift which would have been within roughly six hours. Because he had made an arrest, he set the priority level for the transcription at level two – the second most urgent level. He had no specific recollection as to how quickly the General Report was sent to him for review and he agreed when it was put to him in cross-examination that "you don't know how many days or weeks it was before you reviewed the transcription."

THE LAW

[8] Mr. DeChellis for the Crown drew my attention to the Supreme Court of Canada's decision in R. v. Fliss, 2002 SCC 16, [2002] 1 SCR 535 at paragraphs 43-45 where the court stated:

"There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, that becomes the evidence. The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background." [emphasis added]

[9] Mr. Lindsay tries to distinguish Fliss saying the case was not concerned with the issue of verification and noting that it is not for the defence to speculate as to potential inaccuracies.

[10] Indeed, Mr. Lindsay did not point me to any particular discrepancy between the two documents nor did he suggest any specific piece of information was present in one but not the other. He places the burden on the Crown to show that verification was done "in time".

[11] I have reviewed copies of both the General Report and the handwritten memo book notes and have been left to speculate as to what noteworthy differences, if any, distinguish the two documents. To my eye the two are very similar. While the cursory bullet-point format of the handwritten notes is often filled with contractions and short forms, more or less the same information appears to be conveyed, albeit in a more readable and fulsome fashion, in the General Report.

[12] Mr. Lindsay suggests that the fact the officer has all the key notes and chronologies preserved in his handwritten memo book should give the court comfort in restricting the officer to use of these notes – and only these notes – to refresh his memory.

[13] Ultimately Mr. Lindsay relies on the seminal text by Sopinka, Lederman & Bryant: The Law of Evidence in Canada 5th edition at Chapter 16 section 16.105. There, in reference to the rules governing refreshing a witness' memory, the authors note a requirement for "contemporaneity of record". Specifically that,

"The record which the witness is allowed to consult must have been made or verified by the witness at or near the time that the matters were observed by the witness. In deciding whether the record was made or verified with the requisite contemporaneity, it is insufficient to accept the assertions of the witness that his or her recollection was still fresh when he or she made or verified the record." [emphasis added]

[14] The excerpt goes on to cite two cases, one in which a record made two months after the events was rejected and one where a mere several weeks delay was rejected.

[15] In reviewing the words of the text I note – and place great emphasis on – the repeated phrase "made or verified". It is clear that the contemporaneity requirement for records used to refresh a witness' memory applies to either when the record was made or when it was verified.

[16] In this case the original record is the audio voicemail left by Cst. Allen on the automated transcription line. I have no hesitation in finding that, having completed this before the conclusion of his shift, it was made sufficiently contemporaneously to be used by him today to refresh his memory.

[17] The only remaining issue is whether the transcribed version of that record, having been verified by Cst. Allen at some unknown time in the future, possibly days or weeks after he made it, now prohibits his reliance on the printed General Report. The only principled basis for restricting admissibility to such a stimulus record would be over concerns that the transcribed General Report does not accurately reflect the actual audio voicemail Cst. Allen created before the close of his shift that night.

[18] I return to the words of the Supreme Court in Fliss. Even a "largely inaccurate" stimulus record is permitted to be used as the record itself is never in evidence – it is the recollection, if any, that the record triggers in the witness which become evidence, subject – as always – to evidentiary weighting.

[19] In this case any concerns over inaccuracies or an undue time-lag between creation and verification are speculative at best. While Cst. Allen agreed with the general proposition that it could have been "days or weeks" before the transcribed General Report was reviewed by him, his general recollection was that (a) the transcriptions were accurate, (b) where uncertainty existed in the ear of the transcriptionist it would have been noted as such and drawn to his attention, and (c) a level-two priority request for transcription would have been completed quickly.

[20] In all of the circumstances the General Report is the product of an audio record made contemporaneously with the events and its subsequent verification at some future point in time does not now render it impermissible for use as a stimulus to refresh the witness' memory.

Released: September 4, 2020

Signed: Justice Edward Prutschi