POLICE INVESTIGATIONS 101

The controversies surrounding the completeness of an officer’s notes or report: An introduction

Gilles Renaud[1] | May 23, 2023

Introduction

This paper discusses briefly the controversy surrounding the reliability of testimony by police officers in cases in which it is suggested that their notes contain no support (or quite inadequate support) for their evidence. In brief, may a court accept that the suspect fell while stepping out of their vehicle if this is not recorded?

I stress that this paper merely introduces the subject in general terms as each police agency requires certain procedures or policies to be complied with and the case law discussed below contains a number of related issues that are best left for another day.

Discussion

An overview of the main issues

It will be of great assistance to begin by quoting a few passages from R. v. Machado, 2010 ONSC 277, 92 M.V.R. (5th) 58, a judgment of Justice Durno of the Superior Court of Ontario, as the case provides significant assistance on this general issue and introduces many of the themes that will be addressed in this paper.

I note that His Honour remarked at para. 114 that “A number of issues were raised regarding [the officer’s][2] evidence…” The third of these was introduced as follows:

120 … whether the absence of more fulsome notes from the scene and throughout the preparation of the report diminished the weight to be attached to his opinion. Included in that question is another issue, whether the notes are intended to be disclosure or whether the notes are only to be prepared to assist the officer in refreshing his or her memory and happen to be disclosed to defence counsel.

Justice Durno then wrote:

121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some … have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 52 O.R. (3d) 779, 2001 CanLII 24186, 151 C.C.C. (3d) 339 (C.A.); R. v. Bennett, [2005] O.J. No. 4035, 22 M.V.R. (5th) 36, 2005 CanLII 30328 (S.C.J.).

Having pointed out that there is no duty to consign each observation made by a police officer, and that findings of guilt have been recorded notwithstanding that the critical evidence was not found in a notebook entry, Durno J. went on to highlight the guidance put forward by Superior Court Justice Garton in R. v. Antoniak, 2007 CanLII 53233 (Ont. S.C.J.), at paras. 24 and 25:

24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

Thus, an officer’s independent recollection that is obviously not written in any contemporaneous note or report, as it would not be an independent element of memory in such a case, may constitute the foundation for a finding of guilt. That said, Justice Garton was careful to add an important observation as to the limits of this proposition: as in the case of any testimony, it might be given little or no weight, and this might well be the case if it is the type of important evidence that ought to have been noted carefully. In this context, consider situations in which a new trial is ordered by the Supreme Court of Canada years after the original trial. To be brief, suffice it that I repeat the words consigned at para. 123: “The question is whether the absence of more fulsome notes impacted on [the officer’s] evidence.

Of interest, Durno J. also addressed a submission touching upon the potential liability of an officer to a professional misconduct finding. Thus:

124 As regards the submission that the absence of notes amounts to an offence under the Police Services Act, on this record I am not persuaded that any offence has been committed. It may be that it would be covered by a general duty, but I have no evidence on that issue and am not prepared to make any finding of fact on that assertion. Indeed, even if I was, the impact on the officer's credibility would have to be determined as described by Garton J. I am unable to see any ulterior motive for the absence of notes, nor do I find that it impacted on the credibility or reliability of the evidence.

At the end of the day, the Court concluded: “125 On the facts of this case, I am not persuaded that any of the alleged problems with the officer's notes impacted on his reliability. … I do not find any concerns with the officer's credibility...”

Reasonable suspicion to believe that the officer’s testimony, on a point that is unaided by an aide-memoire, is unreliable

At the outset, it is not without irony to note that this controversy arises so often in the context of a defence challenge to the “reasonable suspicion” that a peace officer suggest they possessed that a motorist had alcohol in their system at the time of operation or care of a conveyance. In effect, defence counsel suggest that the court ought to have no confidence (or insufficient confidence) that the testimony that is not recorded is reliable.

A first case involving drinking and driving, and a suggestion of inadequate notes, that I wish to address is Justice M.G. March’s judgment in R. v. Richardson, 2022 ONCJ 260. As set out at para. 203, His Honour wrote: “203 I am suspect but cannot find that [the arresting officer] was being dishonest by not noting in his duty book the conversation about alcohol consumption which he testified he had with Richardson at the roadside.”

The instruction provided by Justice Duncan in R. v. Zach

R. v. Zack, [1999] O.J. No. 5747 (C.J.), an oral decision, was decided by Justice Bruce Duncan. Para. 1 sets out that the Court was seized with a Charter argument to the effect that the arresting officer did not have reasonable and probable grounds “… or at least it being a warrantless search, the Crown has the burden of proof on the balance of probabilities that he did have and they failed in that.” Duncan J. added at para. 2: “There is a credibility issue here.”

More to the point, para. 4 reads: “It is noteworthy that the very experienced officer did not have in his notes the observation of her unsteadiness on her feet, nor that she was confused.” Moreover, the next paragraph includes these remarks:

5 The information he had was apparently given to Officer [B]. Officer [B] said he received the information from [the arresting officer]. Similarly, [B]'s notes failed to indicate anything about the unsteadiness on her feet, although according to [B] there was mention that the accused had been weaving in her vehicle but as I said, that was not information that [the arresting officer] said that he had at a point in time before the arrest and reading of the demand.

The passage that follows has been referenced in many hundreds of cases:

6 It is common ground that it is [the arresting officer’s] grounds that must be assessed and they must be assessed subjectively and objectively. With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to [the arresting officer]. The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made. [Emphasis added]

Of interest, Justice Duncan later had the opportunity to explain what he meant in the oral judgment he delivered in Zack. Indeed, in the case of R. v. Golubentsev, [2007] O.J. No. 4608, His Honour said:

My own decision in R. v. Zack, [1999] O.J. No. 5747 is often relied in support of an argument to the effect "If its not in the notes, it didn't happen". That is not what Zack stands for. Rather, in that case I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it". Zack is a case about disclosure, not note taking, and it speaks to important matters -- in that case the foundational observation of unsteadiness on the feet that was the basis for the opinion of impairment and demand -- effectively holding that the police can't keep aces up their sleeve. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, disclose the significant observations that he made. Zack should not be interpreted as holding that police notes must be a comprehensive script of everything that occurred.

In summary, if one only considers the cases discussed briefly in the introductory section, notably R. v. Antoniak, [2007] O.J. No. 4816, 2007 CanLII 53233 (Ont. S.C.J.), at para. 25, the decision of Duncan J. can be fully understood and applied on the basis that the trial judge concluded that this omission cast grave doubts upon the memory of the officer, especially considering the testimony of the other officer that they recalled weaving but not unsteadiness.

The ongoing interest in the case of Zach is not on the question of one trial judge’s finding of fact, but rather on the brief discussion surrounding the evolving duty to record far more information than has been the case in order that it be disclosed. For ease of reference, I repeat the salient passage:

6 … If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made.

Why not “note” things that are certainly going to be controversial?

I wish to emphasize that as I read several cases in researching this paper, I was struck by the many references to “no notes” or words to that effect in situations in which it is obvious that there will be defence cross-examination. In R. v. Palmer, 2009 ONCJ 23 (C.J.), I read these relevant remarks:

62 Although not put in his notes, the officer testified that he recalls the doctor said something to Palmer to the effect of "Oh, I hear you're going to give me some blood" to which Palmer replied words to the effect of "Like fuck I am, I'm out of here". This exclamation or words to that effect were not contained in the officer's original notes and only came to light during a pretrial meeting with the Crown shortly before the trial commenced.

…

70 Again, although not in his notes, Constable … recalled on the day of his meeting with the Crown in preparation for the trial, that Palmer had told him that he was sitting in he rear seat behind the driver.

As a general observation, I suggest that it is always controversial to attempt to quote what a detainee may have said to others in a hospital setting when drinking and driving allegations are made, and it is no less controversial when suspects in such cases claim to have been seated at places other than the operator’s seat. Thus, as a matter of common sense, careful notes on these subjects of controversy will spare you from much searching cross-examination that will always include the question “How much time would it have taken you to write down these [insert number] words?”

The Supreme Court of Canada judgment in Wood v. Schaeffer

One of the most important and informative rulings on the question of an officer’s notes is the judgment of the highest court of the country in Wood v. Schaeffer, [2013] S.C.J. No. 71. Indeed, para. 62 (and following) records this quite valuable instruction:

(a) The Duty to Make Notes Generally

62 Section 9(1) and (3) of the regulation require witness and subject officers to "complete in full the notes on the incident in accordance with [their] duty". The regulation does not define the duty to make notes. Nor does the Act, which provides a non-exhaustive list of the "duties of a police officer" in s. 42, including, for example, preserving the peace, laying charges and participating in prosecutions, and performing the lawful duties that the chief of police assigns.

63 Although it is common ground among the parties that the duties of a police officer include a duty to make notes on the events that transpire during the officer's tour of duty, I recognize that neither side points to a definitive statement of this Court holding as much.

64 However, reports by experienced jurists have concluded that such a duty exists. For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G.A. Martin, observed that:

[T]he duty to make careful notes pertaining to an investigation is an important part of the investigator's broader duty to ensure that those who commit crimes are held accountable for them.

[I]nadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution. In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted. (Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) ("Martin Committee"), at pp. 151 and 153)

65 In another instance, the Honourable R.E. Salhany considered the significance of police notes in the course of a public inquiry into a death caused by an off-duty officer. He explained the importance of notes in this way:

[Note-making] is not a burdensome task that police officers must reluctantly undertake because they were taught to do so at their police college. It is an integral part of a successful investigation and prosecution of an accused. It is as important as obtaining an incriminating statement, discovering incriminating exhibits or locating helpful witnesses. The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator. [Emphasis added by the Supreme Court of Canada.] (Report of the Taman Inquiry (2008), at p. 133)

66 These conclusions, in my view, stand on firm ground. The importance of police notes to the criminal justice system is obvious. As Mr. Martin observed of properly-made notes:

The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate. [p. 152]

67 Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer's duty to assist in the laying of charges and in prosecutions -- a duty that is explicitly recognized in s. 42(1)(e) of the Act.

68 None of this, of course, comes as news to police officers. In this case, for example, OPP policy confirms the duty to make notes by requiring constables to record "concise, comprehensive particulars of each occurrence" during their tour of duty and to "make all original investigative notes ... during an investigation or as soon as thereafter practicable" (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52). More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R.E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78.

Note the emphasis respecting “significant facts”

The interesting case of R. v. Lozanovski, [2005] O.J. No. 1322 (C.J.) includes this interesting observation at para. 14, after quoting from R. v. Zack, [1999] O.J. No. 5747 (C.J.): “… I respectfully agree with this view of the diminished reliability of this kind of evidence. It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by police and not left to the whim of memory. [Emphasis added by the trial judge in Lozanovski]

In the very helpful judgment styled R. v. Odgers, 2009 ONCJ 287, these comments are found at para. 16:

… It can be of particular concern in instances, when events or observations of obvious relevance and importance, are omitted or not adequately documented in the notebooks of officers. In such instances, the courts have demonstrated a heightened awareness of the evidentiary dangers, such deficient notes present to a trier of fact. When serious inadequacies are demonstrated, the credibility of police officers can in fact be discounted. It goes without saying that the absence of notes on an important factor is relevant to an officer's credibility. [Footnote 9 placed at this location refers to the Ontario Court of Appeal case of R. v. Fisher, 2005 CanLII 16070]. As a result the courts have on occasion, been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer's notebook. I am aware of a large body of case law on the subject. [Footnote 10 located here reads: See also R. v. Farrell, [2007] No. 06-5600 Nadelle J. (O.C.J), as well as R. v. Eagle, [1996] O.J. No. 2867 (Ont. Gen. Div), citing report of A.G.'s Advisory Committee.] Ultimately however, this is often a matter of common sense and as usual each case, must be determined on its merits. [Emphasis added]

The prior orthodox view that the notes of a police officer were simply a form of aide-mémoire

This earlier school of thought was referenced in R. v. Odgers, 2009 ONCJ 287, and I wish to draw attention to para. 16: “Generally speaking in the matter of police officers' notes the law has indeed evolved over time. No longer are the notes of an officer a simple aide-mémoire generated for the sole purpose of that officer to assist in refreshing his/ her memory. …”

Disclosure to defence as a justification for an increased or heightened obligation to consign detailed notes

I noted earlier that in R. v. Zack, [1999] O.J. No. 5747 (C.J.), Duncan J. observed, amongst other valuable remarks:

Further, I repeat that in the case of R. v. Golubentsev, [2007] O.J. No. 4608, Duncan J. said:

I now quote again from R. v. Odgers, 2009 ONCJ 287 at para. 16, and pursue the reproduction of the valuable guidance that case provides:

16 Generally speaking in the matter of police officers' notes the law has indeed evolved over time. No longer are the notes of an officer a simple aide-mémoire generated for the sole purpose of that officer to assist in refreshing his/ her memory. While the notebook continues to be an important investigative tool, it has also evolved into a fairly significant evidentiary document of sorts. Their use as a source of reference in the course of a trial can play a significant role in a court's assessment of the evidence. The quality of such record keeping can indeed impart far reaching consequences on occasion. It cannot be said that the adequacy of an officer's notes is of little consequence. Accordingly, the courts have recognized that there is an inherent duty placed on officers, to prepare complete and accurate notes. In the normal course of disclosure, officers' notes invariably find their way into the hands of defence counsel, who will of course rely on them. This has become an even more significant reality, since the advent of Stinchcombe, [1991] 3 S.C.R. 326. [Emphasis added]

On a personal note, I wish to emphasize that on occasion prior to a judicial pre-trial, especially in cases of quite serious impaired and dangerous driving cases, I have asked the prosecution to provide a copy of the officers’ notes so that I might assess for myself the quality of the information available to refresh the memory of the potential Crown witnesses.

The importance of omissions or inadequate information in police notes is judged on a case-by-case basis:

Para. 71 of the case of R v Oshana, [2022] O.J. No. 635 (C.J.) records what follows: “… the significance of an omission in a police officer's notebook must be determined on a case-by-case basis. The proper way to evaluate an omission in an officer's police duty notes is to determine the relevance and importance of the omitted observation in the totality of the circumstances.”

“Curing” an omission by means of a note found in a colleague’s report or notebook

The case of R. v. Kalia, 2021 ONCJ 395, is of interest in that the Court rejected the concerns raised by defence counsel about the absence of a note respecting the suggested unsteadiness of the suspect at the scene of an impaired arrest on the grounds that the breath technician testified that he was told of this observation by the arresting officer that night and recorded it. Of course, that whole waste of time was avoidable with a clear note by the arresting officer.

Stenographers, are police officers to be held to the standards of

The case of R v Roth, [2020] OJ No 2814, decided by Justice S.G. Pratt records this valuable observation:

13 … We should not expect officers to be stenographers in the course of a criminal investigation. It must be remembered that the evidence is their testimony, not the notes they made. PC […] testified that he was "certain" he advised the Defendant of the reason for the stop, despite that not being found in his notebook. I do not take the absence of that fact from his notes as fatal to his claim.

Conclusion

This document will have been of assistance is if has influenced police officers to no longer think that their notes are meant to solely refresh their memory as they are now understood by the judiciary to be part of the disclosure process.

[1] B.A., LL.B., a member of the Bar of Ontario from 1983 to 1995 including employment as a prosecutor with the Department of Justice (Canada) and as an Assistant Crown Attorney. I retired from the Ontario Court of Justice after a 28-year career.

[2] I do not think it necessary to name the officers in the context of a teaching tool.