The Importance of Making Notes

Every so often, a new case highlights the importance of notebooks and reminds us of the pitfalls and consequences of failing to make notes during an investigation (call). This latest case is not posted to serve as “case law” or precedent, but rather as a reminder to officers.

R. v. Fewer, [2016] N.J. No. 312 – Fewer was released on an undertaking given to a peace officer. The undertaking included a condition prohibiting Fewer from the “possession and consumption…of alcohol.” Subsequent contact with the police led to Fewer being charged with the offence of breach of undertaking, contrary to section 145(5.1) of the Criminal Code. At Fewer’s trial, a police officer testified that he had contact with Fewer and another individual. The officer testified that he smelled alcohol coming from Fewer’s breath. However, in the notes this officer made in relation to what occurred, there was no reference to Fewer being present, let alone any smell of alcohol being detected from him. Fewer argued that the absence of any reference to him in those notes should cause the court to doubt the reliability of the officer’s evidence.

Provincial Court Judge W. Gorman cited Wood v. Schaeffer, [2013] 3 S.C.R. 1053, where the the Supreme Court of Canada said police officers taking detailed notes should not be underestimated, indicating that it had “little difficulty” in concluding that police officers “have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation” (at paragraph 67).  He also cited R. v. Seguin, [2016] O.J. No. 3813 (C.J.), where it was noted that the “failure to contemporaneously record important information may result in the court being unable to accept the viva voce evidence in that regard” (at paragraph 41).

At trial, the officer testified that on the day in question, he was assisting a fellow officer and he heard someone “screaming” from inside the other officer’s police vehicle. He indicated that he opened the back door of the vehicle to see what this person “wanted” and to “see what was wrong.” He testified that he could “smell alcohol on [this person’s] breath” and that he was “upset.” The officer did not describe whether the smell was a strong or weak one. He did not indicate how close he came to Fewer, whether he spoke to Fewer, or whether Fewer spoke to him.

On cross-examination, the officer was referred to the notes he made concerning this incident. The notes referred to Mr. C; to Mr. C being advised of his right to contact counsel; a smell of alcohol coming from Mr. C; and Mr. C being arrested. However, the notes contained not a single word in relation Fewer. Judge Gorman was concerned about the lack of reference to Fewer in the officer’s notes. The officer took the time to make notes concerning his contact with Mr. C, but as pointed out earlier there was not one word spared for Fewer. As a result, the officer had to rely entirely on his memory. The entirety of the officer’s evidence left the Judge with a reasonable doubt as to whether he smelled alcohol coming from Fewer. The charge laid against Fewer was dismissed.

If interested, other cases such as R. v. Zack, [1999] O.J. No. 5747 (C.J.), R. v. Makhota, [2004] O.J. No. 5415 (C.J.) and R. v. Bailey, [2005] A.J. No. 790 had similar findings that evidence “not contained in officer’s notes may be suspect or given less weight”. This does not mean that every time an officer’s notes are found wanting that that officer’s evidence will be suspect (see R. v. Gill, 2015 ONSC 7872, at paragraph 45 and R. v. Broxterman, 2016 ONCJ 285, at paragraph 17), but why risk it…

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