R v Davidoff, 2013 ABQB 244 (CanLII)
[22] Mr. Davidoff argues that police have a duty to take complete, accurate and comprehensive notes during an investigation. Evidence given by a police officer which is not contained in his or her notes may be suspect or given less weight. He cites R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) and R. v. Bailey, 2005 ABPC 61 (CanLII), 2005 ABPC 61.
[23] In R. v. Zack, dealing with whether the investigating officer had reasonable and probable grounds to make a breath sample demand, Duncan J. stated at para. 6:
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.
[42] It is clear from credible legal texts and reports that there is a duty upon officers to take complete, accurate and comprehensive notes. The primary reasons for this is to enable an officer to give accurate testimony in court, given the fact they may be called upon to provide this evidence weeks, months or even years after the incident. Evidence not contained in officers' notes may be suspect or given less weight on the basis of credibility, not Charter breach.
[43] There is no legal authority that I am aware of which has held incomplete police notes, in themselves, to amount to a Charter breach of the accused's right to make full answer and defence under Section 7 and 11(d). So far some cases have merely held that evidence testified to in court, but not confirmed in some fashion in police notes disclosed prior to trial, is not reliable. Such evidence has therefore been held to be suspect and not proven beyond doubt, with the result there has been insufficient objective evidence in such cases upon which the officer is entitled to rely to constitute the reasonable and probable grounds necessary to make the breath demand. Evidence not found in notes has been found suspect when notes are clearly deficient on key factual issues which an officer would be expected to record.
[25] I agree with Judge Van de Veen's analysis. The absence of notes, or incompleteness of notes, is a matter that goes to the witness's credibility. It is good police work to take contemporaneous, complete, accurate and comprehensive notes. Such notes are important to the witness's ability to refresh his or her memory, and in some cases the notes may be evidence in themselves where the witness has no independent memory of the events.
[26] Shortcomings in the notetaking, however, have no automatic consequences. A witness may be believed despite shortcomings in the notes; a witness may be disbelieved despite having comprehensive notes. Notetaking is an aid to credibility but is not determinative one way or the other.
[27] There is no rule of law that says a police officer's testimony, unsupported by notes, is inadmissible or deemed to be incredible or untrustworthy. Notes, the absence of notes and the quality of notes, are only factors in assessing credibility.
[28] A police officer owes no duty to an accused person to take notes and the failure to take notes is not a breach of any Charter right, as was held in R. v. Bailey.
[29] Here, Judge Johnson heard the evidence of both Mr. Davidoff and Cst. Ledig. She did not disbelieve Mr. Davidoff, instead she found that he did not effectively communicate to Cst. Ledig who he was trying to contact and who he had on his cell phone. She simply says of Cst. Ledig: "Constable Ledig made notes of the encounter. His evidence was not shaken on
cross- examination." (At para. 36).
[30] After dealing with Mr. Davidoff's argument as to automatic rejection of Cst. Ledig's evidence because of the absence of comprehensive notes, and a breach of duty on the part of Cst. Ledig, I am left with a credibility assessment.
[31] Credibility assessments are findings of fact, which are within the purview of the trial judge absent palpable and overriding error. Here, the trial judge did not make adverse credibility findings. She held that Mr. Davidoff had not effectively communicated with Cst. Ledig. Cst. Ledig testified as to a clear memory of who he believed Mr. Davidoff was referring to. Her characterization of their verbal exchange is supported by the evidence, and I do not see that it has been affected by any error, let alone a palpable and overriding one.
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