CITATION: R. v. Cervini, 2023 ONCJ 469
DATE: October 23, 2023
INFORMATION No.: 21-LE-8573
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ACHILLE CERVINI
Before Justice R. Marion
Matter Heard: August 15, 2023
K. Krantz .................................................................................................. Counsel for the Crown
K. Marley ................................................................................................ Counsel for the Accused
MARION J.:
RULING ON A KHAN APPLICATION AS TO ADMISSIBILITY OF A POLICE OFFICER’S NOTEBOOK ENTRIES AND REPORTS
[1] Mr. Achille Cervini is charged with having, within 2 hours of ceasing operation of a conveyance, a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 320.14(b) of the Criminal Code.
[2] Due to serious illness, the officer-in-charge of the investigation, P.C. Zack Glaves is unable to testify at trial.
[3] The accused brought a Charter Application alleging breach of s. 10 and seeks exclusion of evidence, in particular, the Intoxilyzer test results.
[4] The Crown has brought a Khan Application seeking to have admitted in evidence P.C. Glaves’ typed reports and his handwritten duty book notes regarding the alleged incident.
[5] The underlying considerations of the principled exception to the hearsay rule, as set out in R. v. Khan[^1], are trial fairness and maintaining the integrity of the truth seeking process.
[6] In Khan, the Court outlines the criteria for admissibility of hearsay evidence as necessity and reliability.
[7] Courts have found that a witness’ medical condition can satisfy the necessity requirement[^2].
[8] Due to P.C. Glaves’ illness and that evidence of a similar value cannot be obtained from another source or witness at trial, I am satisfied that the test of necessity has been met.
[9] P.C. Glaves played a pivotal role in the investigation. P.C. Glaves approached the accused’s vehicle, made observations which led to the roadside testing, which he conducted. He formed reasonable grounds and arrested the accused. Essentially, all key elements relevant to the investigation, including reading the breath demand, grounds for arrest and rights to counsel, need to be adduced through P.C. Glaves’ testimony.
[10] The test of reliability encompasses two stages. At the initial stage, threshold reliability is assessed by the trial judge. The trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability, so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Only when assessing ultimate reliability is the truth of the declaration determined and only if it is determined to be true by the trier of fact, judge or jury, will the evidence be admissible. Ultimate reliability is only determined after threshold liability has been established.
[11] Before I address threshold reliability, it is important to set out what the officer’s notes and reports are. They are an “aide mémoire” and not evidence. The officer’s notes and reports were never intended to be adduced as evidence. If an officer has an independent recollection of an event, it is the officer’s testimony that constitutes the evidence. The notes or report commonly contain names, addresses, time, observations, hearsay statements, perceptions and opinions.
[12] If an officer has no memory of an event and his notes and report are unable to refresh his memory, the notes or report cannot be admitted as the officer’s evidence. Even if they sparked the officer’s memory, the officer should not be permitted to simply read their notes or report as their evidence. The witness’ testimony based on their actual memory is the evidence and not the notes or report.
[13] P.C. Glaves is the only officer who interacted with the accused at the roadside and his evidence is critical to the issues raised by the accused’s Charter Application.
[14] P.C. Glaves’ notes are legible. The typed reports and notes appear to be contemporaneous with the incident.
[15] As it concerns conduct of the trial, an independent witness can testify as to the incident at the McDonald’s restaurant which led to the complaint and police dispatch.
[16] P.C. Meloche and his partner arrive on scene and follow the accused’s vehicle until the traffic stop. The officers can provide evidence of driving conduct to that point. P.C. Glaves, in his own cruiser, is following the cruiser operated by P.C. Meloche. P.C. Meloche stops behind the accused’s vehicle while P.C. Glaves passes both vehicles and stops in front of the accused’s vehicle.
[17] At 00:10, P.C. Glaves approaches the accused’s vehicle and from this point on, only P.C. Glaves can offer evidence as to his grounds for arrest and subsequent steps taken including rights to counsel.
[18] It is in those two areas “reasonable grounds” and “rights to counsel” that the Crown seeks a determination of admissibility of P.C. Glaves’ written notes and typed reports entitled Case File Synopsis and General Report. Initially, the Crown sought a declaration of admissibility of all of the contents of the notebook and both reports to provide a fulsome picture as to the reliability of the hearsay evidence. Counsel, in oral argument of the Application, however, limited the scope of the evidence to be considered as set out above. It is important to note that the Crown has not adduced any evidence in support of its Application but relies on the contents of P.C. Glaves’ notebook entries and the contents of the two reports and its written and oral submissions.
[19] I have prepared a comparative table to reflect the contents of P.C. Glaves’ two reports and notebook as pertinent to grounds for arrest and rights to counsel.
Notebook Entries
General Report
Case File Synopsis
Glossy Eyes
Glossy Eyes
Glossy Eyes
Male opened wallet, driver’s licence visible and takes his time to locate driver’s licence
The driver opened his wallet with his driver’s licence clearly visible from P.C. Glaves’ perspective. The male took his time scanning his wallet for his driver’s licence which was in plain view.
Had a delayed response when he produced his driver’s licence, ownership and insurance
Opens centre console and searches for ownership / insurance
Scanning through his centre console looking for his ownership and insurance
See above
At 00:10 unable to smell odour of alcohol as bag of fresh McDonald’s sat on passenger seat
Similar to notes
No mention
Suspicion of alcohol prior to operating motor vehicle
Same
Same
00:13 A.S.D. demand, which he understood
00:15 Fail
00:16 R.P.G.
Arrest over 80
Can smell odour of alcohol emanating from Cervini
Same
Same
Cervini exited his motor vehicle and walked over to P.C. Glaves’ cruiser for the A.S.D. test
When Cervini separated himself from his motor vehicle and the smell of fresh McDonald’s, P.C. Glaves could smell an odour of alcoholic beverage emanating from Cervini’s breath.
Same
Same
Same
Cervini was emitting a strong odour of alcoholic beverage from his breath (my emphasis)
00:16 – I asked him “have you done this before”
Cervini says “yeah”
“What was the result”
“Not good”
“Have you ever done one of these before”
“Pfft, yeah the results were good
No entry in this regard
00:16 (while awaiting the results of the roadside test) P.C. Glaves asked:
“What do you think the results will be”
“Well I did have a couple of drinks”
Same
No entry
00:17 R.T.C. from (Rights to Counsel) Force Card
“Do you understand?”
“Yes”
“Do you want to call a lawyer now?”
“No, my regular lawyer died”
00:18 Caution – Force Card
“Do you understand?”
“Yes”
00:19 Breath demand – Force Card
“Do you understand?”
“Yes”
02:21 “Asked again if he would like a lawyer”
“Why, my regular lawyer is dead, and duty counsel will just tell me don’t say anything”
Same
Same
“Do you wish to call a lawyer”
Same
Same
During lodging asked Cervini again if he wished to call a lawyer. Cervini answered: “Why my regular lawyer is dead, and duty counsel will just tell me don’t say anything”
No entry
No entry
No entry
No entry
No entry
No Entry
No entry
No entry
Cervini uttered throughout the police interaction that he was a seasoned drinker
[20] There are a few cases dealing with the admissibility of a police officer’s notebook entries and reports for the truth of their contents. R. v. Prasad[^3] was a prosecution under the Controlled Drugs and Substances Act. The Crown sought to admit a deceased officer’s notes from the searches conducted as well as property reports prepared after the searches. The Court found that the Crown failed to establish threshold reliability. The Court was not satisfied that the notes and report were so reliable that contemporaneous cross-examination would not add to the process and the circumstances did not establish that the evidence was inherently reliable. The officer was not available for cross-examination. The hearsay evidence was not under oath or affirmation. The evidence was in the form of notes and reports and not audio or video recorded.
[21] In R. v. Clarke[^4], the accused was charged with possession of a loaded firearm and ammunition. There was an Application by the accused to introduce a statement referred to in a police officer’s notebook, that there was possibly another male on the premises that was armed, as evidence of the truth of its contents. The police officer was too ill to participate. The accused argued that the statement was necessary to make full answer and defence. The Court was not satisfied that the officer’s statement was necessary or even reliable. Other officers conducting surveillance at the relevant time could offer evidence of other males entering or leaving the premises. In addition, it was not clear as to whether the officer had any direct knowledge upon which to base his statement or whether he was imparting information received from others. The Application was dismissed.
[22] In R. v. Silva[^5], the Court was concerned with the trustworthiness of the same deceased officer’s notes as in Prasad above. The officer died of a fentanyl overdose. The case dealt with a drug seizure. The Court ruled that the exhibit list and property report were admissible as they were independently verifiable, but the notes did not meet the reliability requirement of the principled approach to the hearsay rule.
[23] In R. v. Rowley[^6], the investigating officer was deceased and the Crown sought the admission of a portion of the officer’s notes to establish the continuity of samples obtained in furtherance of a prosecution for possession for the purpose of trafficking. The Court noted “the portion of the officer’s notes sought to be entered, appear to pertain to the facts or procedural aspects of the seizure, when and where it was made and what the officer did with the substance seized.” The Court further states “that the officer’s opportunity to observe, as established by other independent evidence and the routine nature of the note-taking tend to guarantee the circumstantial reliability of the particular notations made.” The only portion of the notes entered into evidence related to the substance seized and that he provided the seized drugs to another officer. The Court further states “I undertake to remind the trier of fact of the inherent frailty of this sort of evidence, keeping in mind that defence counsel is deprived of the opportunity for cross-examination.”
[24] Threshold reliability is established if the hearsay statement is substantively reliable and/or procedurally reliable. The onus is on the Crown to establish threshold reliability on a balance of probabilities.
[25] Many of the safeguards associated with procedural reliability are absent in this case as follows:
the officer was not under oath when making the statement;
the statement was not audio or video recorded;
at the time of making the notes and reports the officer was not cross‑examined; and
the officer will not be available to be cross-examined in court.
[26] The Crown submits that procedural reliability is met because P.C. Glaves was an officer acting in the course of his duties. He knew the importance of telling the truth and that his notes and authored reports would be relied upon for the truth in a criminal proceeding. P.C. Glaves was duty bound to make detailed, accurate and reliable notes.
[27] At this stage of the analysis, the focus is not, however, on the truth of the statement but whether the trier of fact will be in a position to rationally evaluate the statement. [my emphasis]
[28] The other consideration at this stage is whether the notes and reports are substantively reliable. In other words, are they inherently trustworthy because they were made in circumstances that speak to the truth of their contents and accuracy.
[29] The Crown’s submissions in this regard are similar. Essentially, it is argued that the statements were made by an officer who was duty bound to make detailed and accurate notes pertinent to the investigation.
[30] The Crown submits that substantive reliability of the notes and reports would be bolstered by P.C. Meloche and P.C. Gray’s testimony if they testify. They would provide evidence to corroborate the version of events detailed in P.C. Glaves’ notes and reports. Defence counsel has provided a copy of P.C. Meloche’s notebook entries and there are no notes relating to roadside observations or rights to counsel. As it concerns P.C. Glaves, he dealt with the Appellant at headquarters only. It should be highlighted that the Crown has established necessity on the basis that P.C. Glaves is unable to testify and that similar evidence cannot be obtained from another source at trial.
[31] There is no evidentiary basis to believe that P.C. Meloche and P.C. Gray would provide any corroborating evidence in regard to the roadside interactions between P.C. Glaves and the accused.
[32] The nature of the evidence that the Crown seeks to admit is not simply a recording of fact which can be established by independent evidence. They touch on issues which require a probing of all circumstances surrounding the interaction between P.C. Glaves and the accused.
[33] The notebook entries and statements in the General Reports and Case File Synopsis are on occasion inconsistent. Although these differences may appear insignificant, clarity in the least would likely be sought in cross-examination. The comparative table above offers a sample of areas of inconsistency to be queried. Was it a strong odour of alcohol or an odour of alcohol? Did the accused exhibit a delayed response in producing his licence, insurance and ownership or was he just taking his time in producing them? Did the odour of alcohol emanate from him or his breath?
[34] In the Case File Synopsis Report, P.C. Glaves indicates that the accused made statements that he was a seasoned drinker throughout the police interaction. This statement is not recorded in his notebook or General Report. In the very least, this suggests that the conversation between P.C. Glaves and the accused may have extended beyond what was noted. All conversations with an accused during an investigation may be significant and that potential is heightened when dealing with grounds for arrest and Charter issues.
[35] The evidence relevant to issues such as “grounds to arrest” and “breach of a constitutional right” cannot be encapsulated in point form notes, and what is effectively a mere summary of an incident intended to be an “aide mémoire”. The issues raised involve a series of events including conversations and their chronological order. That evidence would be tested, clarified and potentially expanded upon or challenged through cross-examination.
[36] The traditional safeguards associated with procedural reliability are absent in the case at bar and no cross-examination on the contents of the hearsay statements can occur.
[37] The presumption of innocence requires that every shred of evidence adduced to establish an accused’s guilt be procedurally tested at trial at the discretion of the Defence and as deemed appropriate by the presiding judicial officer.
[38] There is an inherent danger in allowing a police officer’s notebook entries and report to be admitted without challenge where that evidence is crucial to the prosecution of an offence. A Court in these circumstances must be vigilant not to undermine the presumption of innocence and prejudice an accused’s right to make full answer and defence.
[39] The Crown has failed to establish the threshold reliability of the notebook entries, General Report and Case File Synopsis Report of P.C. Glaves.
[40] The Application is, therefore, dismissed.
Released: October 23, 2023
(Original Signed by Justice R. Marion)
Justice Ronald Marion
[^1]: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531 [^2]: R. v. Menard, 1996 685 (ON CA), 29 O.R. (3d) 772 (Ont. CA) [^3]: R. v. Prasad, 2019 ONSC 444 [^4]: R. v. Clarke, 2012 ONSC 4551 [^5]: R. v. Silva, [2018] O.J. No. 5650; 2018 ONSC 6457 [^6]: R. v. Rowley, [1992] O.J. No. 2347