COURT FILE No.: YORK REGION (NEWMARKET) 4911-840349754-00
Citation: R. v. Colangelo, 2007 ONCJ 489
IN THE MATTER OF an appeal under Section 135 of the
Provincial Offences Act, R.S.O. 1990, c. P.33, as
amended;
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
— AND —
LUKE COLANGELO
Respondent
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Mr. Hans Saamen, and
Mr. Mark McDonnell
for the Appellant
Mr. V. Manoukian,
for the Respondent
HEARD: June 21, 2007
On appeal from the acquittal of the Respondent by Her Worship Justice of the Peace A.L.
Hefkey on the 7th day of December, 2006.
LAMPKIN J.:
[1]
The Appellant appeals against the dismissal of the charge against the Respondent
that on the 17th day of January 2005 at 11:15 a.m. at westbound Dennison Street in the Town
of Markham he committed the offence of speeding 72 kilometres per hour in a 50 kilometre
per hour zone, contrary to section 128 of the Highway Traffic Act.
GROUNDS OF APPEAL
[2]
The Appellant phrases its grounds of appeal under the heading of legal issues and
asks the following questions:
(1) did Her Worship err in determining that the officer could use the notes as a past
recollection recorded as opposed to a present memory refreshed?
2007 ONCJ 489 (CanLII)
ONTARIO COURT OF JUSTICE
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(2) did Her Worship err in ruling that the officer could only testify upon the items
specifically noted in his notes and not testify about anything which was not contained
in his notes?
(a) the officer was allowed to testify to “past memory recorded” based on responses
obtained in the “qualifying of the notes” stage, and
(b) Her Worship allowed cross-examination of matters testified to and accorded the
appropriate weight to such testimony.
[4]
Both parties have filed books of authorities, some of which I will refer to.
FACTUAL BACKGROUND
[5]
In the course of his examination in chief by Mr. Agostino appearing for the
prosecution to qualify his notes to refresh his memory, Police Constable Peter Cheung
testified that he investigated the matter before the court, that he made notes of the
investigation during and as soon as practicable thereafter, that he made no deletions or alterations to his notes and that he had somewhat of an independent recollection of the incident.
[6]
Mr. Manoukian, agent for Mr. Colangelo, then cross-examined Constable Cheung
on his notes. I set out hereunder the questions asked by Mr. Manoukian and answers given
by Constable Cheung:
Q. Officer, Mr. Agostino asked you if you have got somewhat of an independent
recollection of this event.
A. I’m sorry, can you repeat the question again?
Q. Asked you if you have somewhat of an independent recollection of this event?
A. Yes, he asked me that question.
Q. Okay. What do you understand by the term “independent recollection”?
A. That I do not – I will not rely on my notes. My evidence that I will be giving
before you, Your Worship, will be based on my independent recollection, my
memory of the incidents, not from my notes.
Q. So specifically, officer, what do you specifically recall about this particular stop?
A. I record every stop that I made.
2007 ONCJ 489 (CanLII)
[3]
The respondent submits that the Justice of the Peace did not err in law for the
following reasons:
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Q. Yes. But, specifically, officer, what do you recall about this particular stop that
you made that day that is different to what may be in your notes or other stops that
you have made?
Q. Specifically – okay. Did the defendant make a statement to you that sounded a
little bizarre that you might remember?
A. I don’t recall any statement recorded in my notes or that he made to me, other
than I told him that – about the charge before him today.
Q. Have you met this defendant in the past?
A. No.
Q. No. Okay. Was he driving a special type of vehicle, maybe an antique type of
vehicle that you would specifically remember as having stopped?
[7]
Before the officer could answer, Mr. Agostino made an objection and there
followed submissions by Mr. Agostino and Mr. Manoukian. There were no further questions
by Mr. Manoukian with respect to the notes. In the course of his submissions, Mr.
Manoukian stated inter alia:
.… So by the officer saying – first of all, the officer doesn’t answer my question.
He doesn’t understand what independent recollection is. I’ve asked him over and over
again what is it specific about this event, which by the way, occurred almost 18
months ago or 17 months ago, what do you remember specifically about this event
that would trigger the memory.
[8]
When the officer was asked what was his understanding of the term “independent
recollection” his answer was “My evidence that I will be giving before you, Your Worship,
will be based on my independent recollection, my memory of the incidents, not from my
notes”. It was therefore inaccurate to say that the officer did not understand what the term
“independent recollection” meant.
[9]
I have set out above the questions asked by Mr. Manoukian. It is also inaccurate to
say that he asked the officer over and over again what was specific about the event that
would trigger his memory. Up to that time the officer had not been allowed to look at his
notes but by doing so, his memory could well have been refreshed.
[10]
In answering the first question dealing with any specific recall, the officer stated
that he records every stop that he made. The second question asked was what he recalled
about that particular stop that he made that day that was different to what may be in his notes
or other stops that he had made. He said that he did not understand the question. The officer
was then asked whether the defendant had made a bizarre statement. The officer did not
recall any statement made to him by the defendant. He was asked whether he had ever met
2007 ONCJ 489 (CanLII)
A. I don’t understand your question.
— 4 —
[11]
At the conclusion of Mr. Manoukian’s submissions, Mr. Agostino asked the officer
the following question and received the following answer:
Q. Officer, have you conducted speed enforcement on westbound Denison before?
A. Yes, I have.
[12]
Referring to the officer’s answer, Mr. Agostino stated that would be independent
recollection. He proceeded to make further submissions. The Justice of the Peace then
indicated that she would allow the officer to use his notes. She asked questions of the officer
to satisfy herself that the officer made the notes at the time of the event or shortly thereafter,
that the notes were in his own handwriting, and that he recorded the time and event
accurately.
[13]
She asked whether there were any further questions. Mr. Manoukian submitted that
the officer refer to his notes only for the purposes of past memory recorded, that he must
read the notes verbatim and he proceeded to ask that the notes be submitted as evidence and
marked as an exhibit. Neither Mr. Agostino nor Her Worship had any objections to that
procedure. Mr. Manoukian then added: “The only evidence, without adding or taking away
from it”. The Court said: “Okay”.
[14]
The officer then proceeded to read verbatim from his notes, commencing with his
laser log, indicating the tests he performed to satisfy himself that the Ultralight
LRBLTI2020, an instrument designed to measure accurately the speed of a moving motor
vehicle, was working properly. The notes contained his observations of the Respondent’s
vehicle and the registration of its speed at 11:15 a.m. on Dennison Street; the make, model
and licence plate number of the Respondent’s motor vehicle; his time of arrival on Dennison
Street, the traffic on the street, the weather conditions. The officer also read from the carbon
copy of the certificate of offence which had thereon the speed of the Respondent’s vehicle
and the speed zone it was travelling in. Mr. Manoukian objected to the use of the certificate
as part of the officer’s notes even though the officer had prepared the certificate and Mr.
Manoukian had disclosure of it. Her Worship correctly ruled against him.
[15]
The officer was further examined by Mr. Agostino on issues as to where he was
standing and the use of the instrument that he was using. Mr. Manoukian was on his feet. He
indicated that he did not mind Mr. Agostino asking the questions but wanted a clear ruling
whether the notes are being used to expand the memory or is the court going to accept the
notes that the officer read.
[16]
Further submissions were made. A recess was granted for Mr. Agostino to provide
authority. After the recess there were further submissions, with Mr. Manoukian repeating
that the officer said that he did not have an independent recollection and submitting that the
2007 ONCJ 489 (CanLII)
the defendant before. He said he had not. The officer was then asked whether the defendant
was driving a special type of vehicle such as an antique that he would specifically remember
as having stopped. It was at this point that Mr. Agostino made his objection and the
submissions followed.
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[17]
No further evidence was given on that day, October 17th, 2006. It was agreed that
written submissions be furnished and the matter put over for continuation on December 7th,
2006. On that return day the Justice of the Peace indicated that she had received an
abundance of case law from both parties which she had read. She proceeded to give a ruling
during which she stated inter alia that
…when questioned by the defendant’s agent regarding (his) independent
recollection, the officer appeared not to have any specific recollection of this incident.
Answers were evasive. It appeared no memory of this traffic stop was refreshed by
the officer’s notes. No memory was triggered by the notes.
She stated further that
‘… we’re dealing with a case where the officer’s notes did not trigger a memory of
this specific occasion, therefore, a case where past recollection is recorded and case
law clearly states in such a case, notes must be qualified. The officer reads in notes
verbatim without any commentary or explanation. The notes – and there’s further
case law to support this – the notes are the prosecution evidence subject to submission
by defence. Past recollection recorded does by its nature restrict the officer’s evidence
to his lack of memory of the events and the practice of recording accurately what he
observed. What the officer’s daily work routine includes does not apply in this
scenario and will not be given any weight.
So we are without a memory being refreshed and are dealing with the notes as
evidence.
[18]
Mr. Carabott who appeared for the prosecution on December 7, 2006 sought some
clarification of the ruling and whether any weight would be given to the officer’s notes. The
Justice of the Peace replied:
I give all kinds of weight to the officer’s notes that he reads verbatim. What I did
not give weight to was the questioning of the officer after the notes.
[19]
The trial continued with some questions by Mr. Carrabot. He asked the officer what
is the laser unit used for. The officer answered that it is ‘used to accurately measure the
speed of a moving motor vehicle’.
[20]
Mr. Manoukian objected to the answer on two grounds, first that the officer is not
an expert and secondly he had nothing in his notes to indicate the basis of his answer. The
Justice of the Peace held that the officer was an expert in the area but went on to state:
However, I do also agree that if it is not written down in the notes, then certainly we
cannot use it when it is past memory recorded… It’s a different slant now since we
cannot have memory refreshed right now.
2007 ONCJ 489 (CanLII)
notes cannot be used to facilitate testimony and should be read into evidence as the officer
did and he cannot be allowed to expand on those notes.
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[21]
Towards the end of the examination in chief of the officer by Mr. Carabott, the
Justice of the Peace stated:
[22]
The trial continued with Mr. Manoukian cross-examining the officer almost
exclusively on the use of the laser unit with respect to the manufacturer’s recommendations.
The defendant testified in his own right.
[23]
After submissions the Justice of the Peace gave judgment. Inter alia, she stated:
The unfortunate part is that we are dealing with past memory recorded, which limits
the evidence that the court can hear to the notes that the officer took. It limits the
Crown’s evidence to the notes the officer took and it does in some way limit the
defence cross-examination because you cannot cross-examine notes. The only thing
the defence can do is challenge the officer’s note-taking habits. …..
We also have the defence agent challenging the testing of the laser device as it is
written down in notes. Again, by memory recorded, past memory recorded, the
officer’s evidence was curtailed. It was kept only to his notes so he could not expand
upon them. And that testing being challenged, considering the evidence via the notes
causes the court to have some reasonable doubt. Even if I do not believe the
defendant, and I have my doubts there, I do have a reasonable doubt to the evidence
in regard to the testing of the laser device. And because of that and based solely on
that, I will dismiss it.
SUBMISSIONS
[24]
Mr. Saamen submits on behalf of the Appellant that the Justice of the Peace
confused the issue of weight of evidence with admissibility of evidence. He submits that the
test for admissibility is relevance. He then drew the distinction between the two concepts of
present memory refreshed and past memory recorded. He submitted that the memory of a
witness may be refreshed from anything and once there is some memory, the witness is
allowed to testify as to his memory. With respect to past recollection recorded on the other
hand the written statement of the witness or other record is the evidence. He submits that
there is no evidence of total memory loss on the part of the officer.
[25]
On behalf of the Respondent Mr. Manoukian submits that the officer could give no
specific circumstance of his recollection and that it is implicit that there be some recollection
for him to use his notes to refresh his memory. He submits that the prosecution agreed that
the notes alone be used and in doing so the officer’s testimony amounted to past recollection
recorded and was limited to his notes. He submits that the officer could not go outside of his
notes.
DISPOSITION
2007 ONCJ 489 (CanLII)
It makes it very difficult when the notes are the evidence. It makes it extremely
difficult, but we must stay since it is recorded. I do understand the difficulties.
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[27]
Evidence is generally led through the viva voce testimony of witnesses. Witnesses
do not often recall the event about which they are testifying or the details thereof. Witnesses
may refresh their memory from a previous statement, even one not made contemporaneous
with the events about which the witnesses seek to testify leaving it open to the defence to
attempt to demonstrate through cross-examination that the witnesses had, in fact, no present
memory of the events or that the memory was unreliable: R. v. B. (K.G.) (1998), 125 C.C.C.
(3d) 61. Witnesses may also be allowed to refresh their memory by reference to an earlier
deposition such as a preliminary hearing transcript: Reference Re R. v. Coffin, [1956] S.C.R.
191; 114 (C.C.C.) 1; 23 C.R. 1.
[28]
Professionals such as doctors, nurses, lawyers, judges, police officers, deal with
hundreds of cases over the course of weeks, months or years. They cannot possibly recall all
and so they make notes to trigger their memory of events. They may readily recall some
cases – the delivery by a doctor or a nurse of the first child; counsel’s first murder case or
initial appearance in the Supreme Court of Canada; the swearing in of a judge; the first
investigation by a police officer into the affairs of a major criminal organisation. But in
many, if not most cases, their memory will be refreshed only after consulting their notes.
That does not mean to say that the person does not have an independent recollection of the
event.
[29]
A forgetful witness may rely on any means to jar or spark a memory. What triggers
recollection is not significant. In this way the witness’ memory is presently revived in the
witness box and he or she can then give oral testimony of the remembered event present
memory revived. Although not the only way, the usual means to revive memory is by
reference to a written document made at an earlier time by the witness: see The Law of
Evidence in Canada, (2nd ed.) by Sopinka, Lederman and Bryant, p. 924, para. 16.77. The
evidence is the refreshed memory of the witness and not the document.
[30]
Where a witness has no memory whatsoever of the event even after consulting a
statement made by him, the witness can rely on the document. That is the situation with past
recollection recorded. The Ontario Court of Appeal has distinguished between past
recollection recorded and present memory revived in respect of prior statements. For the
former, the document is the evidence and provided that the proper foundation is laid, it may
be marked as an exhibit: Fleming v. Toronto Railway (1911), 25 O.L.R. 317; R. v. Salutin
(1979), 11 C.R. (3d) 284. But there are strict rules governing the admissibility of evidence as
past recollection recorded. In R. v. Meddoui [1990] 61 C.C.C. (3d) 345; 2 C.R. (4th) 316; Mr.
Justice Kerans speaking for the majority of the Alberta Court of Appeal stated the criteria for
admissibility as follows at p. 352 (C.C.C.):
(a) the past recollection must have been recorded in some reliable way;
2007 ONCJ 489 (CanLII)
[26]
Perhaps the first rule of the law of evidence is that all evidence that is relevant that
goes to prove a fact in issue and not subject to any exceptions such as the rule against
hearsay, is admissible: R. v. Zeolkowski, [1989] 1 S.C.R. 1378; R. v. Watson, 108 C.C.C.
(3d) 310, (Ont. C.A.); Cross on Evidence (6th ed. 1985).
— 8 —
(b) at the time, it must have been sufficiently fresh and vivid to be probably
accurate;
(d) the original record itself must be used, if it is procurable.
[31]
In R. v. Weinberg (unreported) released on April 7, 1992, I stated the criteria as
follows:
(a) first hand knowledge (of the witness);
(b) no present recollection (by the witness);
(c) an original record made at or near the time of the event while the witness’s
memory was clear.
(d) a present attestation as to the accuracy of the statement.
[32]
On November 9th, 1993 the Ontario Court of Appeal held that the four conditions
stipulated in Weinberg required for admissibility of the statement on the basis as past
recollection recorded, were established.
[33]
A somewhat similar issue as in the case at bar came before Mr. Justice Nadel of the
Ontario Court of Justice as recently as April 18th, 2007 in R. v. Nauma Kassam [2007] O.J.
No. 2104. The authority is persuasive and not binding upon me. However I endorse what
Justice Nadel has stated and refer to certain passages of his judgment. In paragraph 32 he
states as follows:
There are in my view two answers to the complaint made by Mr. Houlahan on
behalf of Mrs. Kassam. The first and most significant is that Mr. Houlahan’s
submission that a witness must have an independent recollection before he is entitled
to have that recollection refreshed and become greater or more clear is not in
accordance with binding authority, and it is that error that has caused him to make the
submissions that he has made…. The second answer to his complaint is one that is
also shown in the authorities, namely that once notes are qualified and allowed to be
used the question of the bona-fides of the professed present recollection is a matter
for the trier of fact to consider and a matter for the trier of fact to weigh. The
authorities also disclose that.
[34]
His Honour then reviewed an article titled “Eliciting Evidence from the Reluctant,
Adverse or Hostile Witness” by Marilyn Bartlett, an Assistant Crown Attorney, as well as R.
v. Gwozdowski, [1973] 2 O.R. 50; R. v. K.G.B., supra; R. v. Muise [1974]. 22 C.C.C. (2d)
487; and R. v. Fliss (2002), 161 C.C.C. (3d) 225; 209 D.L.R.(4th) 347 (S.C.C.), following
which he stated:
2007 ONCJ 489 (CanLII)
(c) the witness must be able now to assert that the record accurately represented his
knowledge and recollection at the time. The usual phrase requires the witness to
affirm that he “knew it to be true at the time”; and
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So I reject the formulation submitted by Mr. Houlahan that there is some obligation
in law that a witness must have some independent recollection before that witness is
entitled to have the recollection revived by reference to an aide-memoire; rather, it is
the aide-memoire which allows a current recollection to be revived.
[35]
His Honour then quoted from The Law of Evidence (2nd ed) by David Paciocco and
Lee Stuesser at p. 256 which indicated the type of questions asked for the purpose of
qualifying notes. At paras. 40 to 47 he states:
They pose the questions as follows:
Q. “Do you wish to refer to your notes”
Q. Do you need them to refresh your memory?
Q. Were those notes made by you?
Q. Were they made near the time of the events that they record?
Q. Was your memory fresh at that time?
Q. Have there been any changes made to those notes since then?
You will see from those questions that although it is common practice in courts to
hear the question asked, “Officer, do you have an independent recollection without
reference to your notes?” and the answer normally given is, “Yes”, in my view, that
is not a necessary question and answer that must be given for a witness to be entitled
to be allowed to refresh their memory from notes. (Emphasis in original).
[36]
He concludes in para. 57 “that the officer was not obliged, nor is any witness
obliged, to have a recollection in existence prior to referring to something that jogs his
memory”.
[37]
The case at bar involved an ordinary routine stop of a motorist for speeding. Unless
there was something really remarkable about it such as the motorist colliding with a
pedestrian or losing control and driving into a building – or as Mr. Manoukian suggested in
the course of his cross-examination at the qualifying of the notes stage, if the defendant had
made some bizarre statement or had been driving an antique car - there was probably nothing
so unusual for the officer to recall without looking at his notes. He ought to have been
allowed to look at his notes to ascertain whether he had an independent recollection of the
event. He was not given that opportunity before Mr. Manoukian cross-examined him with
2007 ONCJ 489 (CanLII)
I take it from the passage from Fliss and from the passage from K. G. B. that it does
not matter if a witness has no present or current recollection before that witness’
recollection is sparked by reference to some other item, whether it is a piece of music,
or a person, or in most cases some item written by him, or confirmed by him to be
accurate. It is that item which then is the spark that revives the recollection.
respect to the qualification of his notes. After he read from his notes, no one asked him
whether he had an independent recollection of the event. He had testified in chief prior to
Mr. Manoukian’s cross-examination on the notes that he had an independent recollection.
That evidence was not in any way controverted by Mr. Manoukian’s cross-examination. In
the circumstances it was incorrect and misleading for Mr. Manoukian to keep insisting that
the officer did not have an independent recollection and more importantly for the Justice of
the Peace to make a finding that “the officer appeared not to have any specific recollection of
this incident. ... It appeared no memory of this traffic stop was refreshed by the officer’s
notes. No memory was triggered by the notes”. Mr. Agostino was also in error in agreeing to
have the officer read his notes verbatim.
[38]
As a result the officer’s evidence was confined to what was contained in the notes.
He was not allowed to testify to anything that was not in his notes. Consequently the Justice
of the Peace did not consider relevant evidence and she herself complained about the
curtailment of the officer’s evidence.
[39]
Further even in the case of past recollection recorded an officer may give evidence
of matters outside of his notes such as routine matters of which he is aware, e.g. the location
of a street in a particular municipality; the use of the laser device for testing the speed of
moving vehicles.
[40]
In the result the appeal is allowed and a new trial ordered.
Released:
August 23, 2007
LAMPKIN J.
2007 ONCJ 489 (CanLII)
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