OHTA.ca

What happens if an officer shows up in court with a copy of their notes, but does not have the original? What objection can be brought up in this scenario?

Also is there any objections that can be brought up when the notes the officer is using were not kept in their possession?

Thanks

1st how do you know they were copies? We use electronic notes and they print out on copy paper.

2. I actually use copies as I we tend to file notebooks wit our property room. The only thing in criminal court is that they are the same as the ones that were disclosed and there are no additions or deletions.

In fact we now scan our notes to the file.

3. I only keep three notebooks in my possession. The rest are filed by our property section. So I am not sure what you mean by kept in their possession

ops

I assume if I see an officer flip open his notebook on the stand that it is the original versus a a stack of papers would probably be copies. But my question was regarding if there is any objections that can be brought up if they are copies of handwritten notes. Your answer would suggest, in your opinion, that no there should be no objections to using copies.

For possession I guess I mean does the officer keep their notes with them or locked in their locker (or secured in the property section) versus did the notebooks just get tossed into a filing cabinet somewhere that everybody has access too!

I just found this which answers my question about copies of notes:

R. v. Thom, 2010 ONCJ 492

The Law

[4] It is well-established that notes, documents and other testimonial aids can be used for two purposes: (1) to provide a record of a past recollection where the witness has no present memory of events; or (2) to refresh a witnesss 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] If the 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.

[6] As summarized in R. v. J.R., 2003 CanLII 3896 (ON CA), [2003] O.J. No. 3215 OCA at para. 24, these conditions are:

1. 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.

2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witnesss mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.

4. 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.

These conditions need only be met in the case of a past recollection recorded because the notes are entered as an exhibit at the trial.

(2) Present Memory Refreshed

[7] On the other hand, if a witness has a recollection of the events and wishes to use his or her notes to refresh present memory, the evidence is the refreshed memory of the witness, not the notes. Accordingly, there is no test or conditions to be satisfied before the notes can be used to refresh a witnesss memory.

[8] What triggers recollection is not significant. Any external source or event may be used to refresh a witnesss memory: R. v. K.G.B. (1998), 1998 CanLII 7125 (ON CA), 125 C.C.C. (3d) 61, paras 18-20 (Ont. C.A.).

[9] Thus, a witness may use any notes or document to jog his or her memory, including a preliminary hearing transcript (see Reference re R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 (S.C.C)), a newspaper copy of a story he had written where the original was lost (see Topham et ux v. McGregor et ux (1844), 1 Car.& K. 320; 174 E.R. 829 and a carbon copy of a memorandum (see R. v. Alward [1976] N.B.J. No. 220 N.B.C.A.(affirmed [1977] S.C.J. No. 63 without comment on this issue (S.C.C.)).

[10] It does not matter who made the notes, or when they were made.

[11] Witnesses may use the notes to refresh their memory before testifying (as in R. v. K.G.B.) or when they are testifying in the witness box (as in Coffin).

[12] When a witness refreshes his or her memory from some external source or event, the witness has a present recollection of events, albeit one that has been refreshed. It is up to the judge or justice to determine how reliable and truthful that recollection is. In other words, after cross-examination, it is up to the trier of fact to determine the weight to be given to the witnesss testimony.

And this with regards to electronic notes:

Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193

14) There is no requirement as per R. v. Kassam, [2007] O.J. No. 2104 (Ont. C.J.) and R. v. Colangelo, 2007 ONCJ 489 (CanLII), [2007] O.J. No. 4070 (Ont. C.J.) that the officer has an independent recollection prior to reviewing his notes.

15) Mr. McKinnon says the concern in R. v. Zhu is the fact that the ‘electronic notes are maintained by someone in the Durham Regional Police Service other than the officer who wrote them, and therefore their pedigree should be suspect.

16) There is case law that allows use of notes to refresh memory above and beyond the garden variety handwritten memo book-type notes. In R. v. Mahaney it was determined a police officer could refresh his memory from notes he wrote on a template he had created in response to complaints about his handwriting; R. v. Fliss, 2002 SCC 16 (CanLII), [2002] S.C.J. No. 15 allowed an officer to use a transcript of an electronic wiretap; and R. v. Thom, 2010 ONCJ 492 (CanLII) was an appeal that overturned a decision barring a police officer from using photocopies of his notes to refresh his memory.

17) Certainly there is case law supporting the long-held practice of using notes to refresh memory. Mississauga (City) v. Vattiata, 2010 ONCJ 588 (CanLII) goes so far as to say "it is understandable that police officers ask to refer to their notes to refresh their memory, given they are called upon to give precisely detailed evidence that, at the same time, can be repetitive. "They (police) cannot possibly recall all of the details of each and every case and so they make notes to trigger their recollection of the events. ... There would be certain similarities in each of these cases but there would also be differences. Constable Williams would need to have a superhuman memory if he was required to give his evidence with respect to one particular case without the assistance of his notes."

18) "Clearly, he does not have to do so," the Vattiata jurist said. "Neither does any other police officer nor any other witness who has made notes. On the contrary, nearly every one of them will be questioned as to when and how they made their notes and the court will be asked to rule on whether they may refer to those notes in order to refresh their memory. Almost invariably, the court will allow the police officer or other witness to do so."

19) The authority to refer to ones notes to refresh ones memory is also found in a case that occurred at a time when any thought of ‘electronic notes would have been decried as science fiction, the typewriter roughly as we know it having been invented just 40 years earlier. The jurist in Fleming v. Toronto R.W. Co., [1911] O.J. No. 40 (Ont. C.A.) wrote, "The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466, as follows: ‘A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. ... The writing may have been made either by the witness himself, or by others, providing 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."

20) In R. v. Fliss, 2002 SCC 16 (CanLII), [2002] S.C.J. No. 15, Arbour J. said, "A witness may refresh his or her memory prior to testifying, as long as he or she testifies from present memory revived by the instrument that refreshed it, whatever that instrument may be."

21) Binnie J., also in Fliss, 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, which becomes 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. If the recollection here had been stimulated by hearing a tape of his conversation with the accused, even if the tape was made without valid authorization, the officer's recollection -- not the tape -- would be admissible.

22) Based on all of the above this court agrees with the case law which states a great deal of leeway given to allow witnesses to refresh their memory. It is incumbent upon the trier of fact to determine what weight should be given to the evidence.

My ongoing notebooks are not locked in a locker or property section(other than those stored there). They are tossed into my file cabinet which is not locked and cannot be locked.

Again our handwritten notes are scanned and attached to the file(if there is a file), most tickets do not have a file just the notes. We just print them and take them to court. There is no opening of notebooks but just a stack of pages

If something was added to them you could see that they are not in my hand writing and that would be cause for something else.

ops

okay thank