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dimanche 8 juin 2025

L'appréciation de la crédibilité du témoin policier qui n'a pas pris de notes sur un aspect de son intervention

 R. v. Machado, 2010 ONSC 277

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[120]        Third, is 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.

[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 (note Mr. Brauti) 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), 2001 CanLII 24186 (ON CA)151 C.C.C. (3d) 339 (Ont. C.A.)R. v. Bennett [2005] O.J. No.  4035 (S.C.J.).

[122]        I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No.  4816:

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.

[123]         The question is whether the absence of more fulsome notes impacted on P.C. Wright’s evidence. 

[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.

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