“Police Notes”

hwybear wrote:my book, my notes, certainly do not have to make notes for anyone else but myself.

That's perfectly reasonable. How else could anybody, officer or accused, hope to remember all the significant details long after the fact? Making notes and then using them to refresh one's memory is normal and no different from, say, revisiting the scene a week before the trial, to refresh the memory in that way.

The trial is to adjudicate between what the officer, under oath, swears happened and what the accused, under oath, swears happened, no? It should not be to establish whether or not the officer is a good writer.

Apologies if this is a stupid attitude, but couldn't a lot of fuss be avoided if the officer didn't bring his notes with him to the witness box? If he used his personal notes to refresh his personal memory before rising to take the oath, and didn't bring them with him to the box, I don't see why his private notes should be something for the accused to rummage around in (even if the accused happened to be me). Isn't it only that he's using (or plans to use) the notes on the stand that makes them public?

The notes are relevant because the officer relies upon them at some point. Imagine any trial where there is some information on a sticky note on the side of a computer. The Crown/police are aware of the note and its contents but don't tell the defendant. The officer reads the note before trial to help him prepare to testify.

The defendant doesn't know about the existence of the note, the contents of the note or that the cop will use the note to help him testify. Still think it's a fair trial?

main thing is the notes are provided to the defendant/counsel......now who cares how one writes.....if the notes can not be legitimently read, a typed identical version should be provided upon request.

i have given testimony without the use of my notes. some events just stick out in the mind.

Reflections wrote:http://www.canlii.org/en/on/oncj/doc/20 ... cj266.html

R v Schlesinger

I would like to make note of:

3 "Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See the decisions of Kroft J. (as he then was) in the cases of R. v. Jabs (November 19, 1991) (Man. Q.B.) (unreported) and R. v. Wolf (December 8, 1992) (Man. Q.B.) (unreported) and the decision of Beard J. in R. v. Kraemer (February 17, 1993) (Man. Q.B.) (unreported). In Wolf, Kroft J. stated in part:

• "Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. ..."

Notes are a way for the people who got caught to try and find a loophole to get out of the charge. Thats what I think.

I'm with bear; HIS notes to refresh HIS memory. Nothing more. Why is it the defendant can get up and testify from his or her memory but when the officer does, it its not OK?

You need to remember that Police work is the same as every other job. Repetetive and boring 99% of the time. Officers run radar in the same spots, use and test the same radar/LIDAR on the same shift. No different from someone who works on an assembly line. Different speed, different car but otherwise the same. Why a novel has to be written on the reverse side of the ticket (for standard stops) is beyond me

cruzmisl wrote:Notes are a way for the people who got caught to try and find a loophole to get out of the charge.

"Loophole"?

Notes sometimes show things like:

- Officer did not properly test speed-measuring device

- Officer did not properly observe offence (particularly true at signalized intersections)

- Officer observed defendant do something but charged with wrong offence

- Officer charged defendant with an offence he did not commit by the letter of the law of HTA (e.g. defendant enters intersection on amber, but gets charged with red light - fail to stop "because he was still in the intersection when the light was red")

- Officer lost sight of vehicle

From my point of view, since defendants are entitled to make a full answer and defence, notes are the easiest way of disclosing the Crown's case. The other option is having officers write out will-say statements, which would be writing a novel. I don't think the notes have to be lengthy. The notes can be anything the officer chooses to write - or not write. In many cases, the standard for conviction is minimal, so the notes are minimal or, in some cases, nonexistent. Some officers will just testify off the stuff they wrote on the ticket. If that's the Crown's case and the only thing the officer will use, so be it.

Radar Identified wrote:

cruzmisl wrote:Notes are a way for the people who got caught to try and find a loophole to get out of the charge.

"Loophole"?

Notes sometimes show things like:

- Officer did not properly test speed-measuring device

- Officer did not properly observe offence (particularly true at signalized intersections)

- Officer observed defendant do something but charged with wrong offence

- Officer charged defendant with an offence he did not commit by the letter of the law of HTA (e.g. defendant enters intersection on amber, but gets charged with red light - fail to stop "because he was still in the intersection when the light was red")

- Officer lost sight of vehicle

then when they see it is all there...stand up to the plate and plead guilty!

The other option is having officers write out will-say statements, which would be writing a novel.

Excellent idea, same as QC does their court system and JP decides on both statements!

RI - not going to hijack the other thread...copy/paste over to here

Radar Identified wrote:

hwybear wrote:That is what the notes are...an independent (made on my own) recollection (made them after the fact)

Here's some boring case law on "independent recollection" for an HTA case:

R. v. Kassam, 2007

- officer refer to his notes only for the purposes of past memory recorded, that he must read the notes verbatim and he proceeded to ask that the notes be submitted as evidence

- The officer was further examined by defence on issues as to where he was standing and the use of the instrument that he was using. Prosecutor was on his feet. He indicated that he did not mind defence asking the questions but wanted a clear ruling whether the notes are being used to expand the memory or is the court going to accept the notes that the officer read verbatim

- No further evidence was given on that day, October 17th, 2006. It was agreed that written submissions be furnished and the matter put over for continuation on December 7th, 2006. On that return day the Justice of the Peace indicated that she had received an abundance of case law from both parties which she had read. She proceeded to give a ruling during which she stated inter alia that

…when questioned by the defendants agent regarding (his) independent recollection, the officer appeared not to have any specific recollection of this incident. Answers were evasive. It appeared no memory of this traffic stop was refreshed by the officers notes. No memory was triggered by the notes.

- No further evidence was given on that day, October 17th, 2006. It was agreed that written submissions be furnished and the matter put over for continuation on December 7th, 2006. On that return day the Justice of the Peace indicated that she had received an abundance of case law from both parties which she had read. She proceeded to give a ruling during which she stated inter alia that

…when questioned by the defendants agent regarding (his) independent recollection, the officer appeared not to have any specific recollection of this incident. Answers were evasive. It appeared no memory of this traffic stop was refreshed by the officers notes. No memory was triggered by the notes

- She stated further that

‘… were dealing with a case where the officers notes did not trigger a memory of this specific occasion, therefore, a case where past recollection is recorded and case law clearly states in such a case, notes must be qualified. The officer reads in notes verbatim without any commentary or explanation. The notes – and theres further case law to support this – the notes are the prosecution evidence subject to submission by defence. Past recollection recorded does by its nature restrict the officers evidence to his lack of memory of the events and the practice of recording accurately what he observed. What the officers daily work routine includes does not apply in this scenario and will not be given any weight.

So we are without a memory being refreshed and are dealing with the notes as evidence

DISPOSITION

- Perhaps the first rule of the law of evidence is that all evidence that is relevant that goes to prove a fact in issue and not subject to any exceptions such as the rule against hearsay, is admissible: R. v. Zeolkowski 1989

- Evidence is generally led through the viva voce testimony of witnesses. Witnesses do not often recall the event about which they are testifying or the details thereof. Witnesses may refresh their memory from a previous statement, even one not made contemporaneous with the events about which the witnesses seek to testify leaving it open to the defence to attempt to demonstrate through cross-examination that the witnesses had, in fact, no present memory of the events or that the memory was unreliable: R. v. B.(K.G.) 1998

- Professionals such as doctors, nurses, lawyers, judges, police officers, deal with hundreds of cases over the course of weeks, months or years. They cannot possibly recall all and so they make notes to trigger their memory of events. They may readily recall some cases -- the delivery by a doctor or a nurse of the first child; counsel's first murder case or initial appearance in the Supreme Court of Canada; the swearing in of a judge; the first investigation by a police officer into the affairs of a major criminal organisation. But in many, if not most cases, their memory will be refreshed only after consulting their notes. That does not mean to say that the person does not have an independent recollection of the event

- A forgetful witness may rely on any means to jar or spark a memory. What triggers recollection is not significant. In this way the witness' memory is presently revived in the witness box and he or she can then give oral testimony of the remembered event present memory revived. Although not the only way, the usual means to revive memory is by reference to a written document made at an earlier time by the witness

As a result the officers evidence was confined to what was contained in the notes. He was not allowed to testify to anything that was not in his notes. Consequently the Justice of the Peace did not consider relevant evidence and she herself complained about the curtailment of the officers evidence.

Further even in the case of past recollection recorded an officer may give evidence of matters outside of his notes such as routine matters of which he is aware, e.g. the location of a street in a particular municipality; the use of the laser device for testing the speed of moving vehicles.

In the result the appeal is allowed and a new trial ordered

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the above decision also slams the "R vs Kassam" decision. starting on line 33

But if those notes are to be used in court, then they better be understandable to the defendant. Hence the need for a "translation." It can also depend on your handwriting and the quality of the photocopy. Last time I requested the disclosure, the handwriting was legible and understandable, so I didn't need to request a translation.

Looks like the decision by Justice Lampkin basically says, if the officer has an "independent recollection" without the notes, the officer can use the notes to assist in recall, which may bring additional details as well. If the officer does not have a recollection of the event at all, the officer can only testify with the notes, verbatim.

hwybear wrote:the above decision also slams the "R vs Kassam" decision. starting on line 33

Sure about that? I thought he endorsed it...

Radar Identified wrote:

hwybear wrote:the above decision also slams the "R vs Kassam" decision. starting on line 33

Sure about that? I thought he endorsed it...

Yes, continue into 34 - 36.

Right. I see nothing wrong with an officer on the day of trial going "Hmm... defendant so-and-so..." (flips through notebook, finds notes), "oh yeah."

Radar Identified wrote:Right. I see nothing wrong with an officer on the day of trial going "Hmm... defendant so-and-so..." (flips through notebook, finds notes), "oh yeah."

do this all the time....and many many many professions, careers are the same way with the work and document after and if they need to know what they did on that day they look back at a log book, bill of sale, services rendered etc..

to name a few....

doctors - charts, computers to track each time patient comes in and what was treatment was performed

vets - same as above

contractors - itemized list of materials used and labour

mechanics - repair bill with labour and items replaced

fitness instructor - chart tracking the clients improvement and in what particular exercise

surveyor - plans, charts for each property

etc...

Not one of the above would be able to list every person they have dealt with and what that involvement was unless they can go back and read their charts/bills/notes etc... and would have to read directly from the paperwork.

I can guarantee that my doctor would not be able to tell me why I was last there without looking at the chart. With the chart it might bring back their memory, might not, but it will say on this date, I was there for a broken finger. However, if it was an unusual event, such as I got a timbit stuck in my throat, the doctor would remember that, most likely without a chart.

hwybear wrote:do this all the time....and many many many professions, careers are the same way with the work and document after and if they need to know what they did on that day they look back at a log book, bill of sale, services rendered etc..

Yes, that's why R. v. Colangelo and R. v. Kassam basically said if the officer can look at the notes, before or during the trial, and have memory jogged, it's okay to testify beyond what's in the notes... if no recollection, then can only testify to the notes.

BTW, I wasn't being sarcastic. I was agreeing with you.