ontario building officials association electronic notes prepared by ted allen supervising prosecutor...

Ontario Building Officials Ontario Building Officials AssociationAssociation

Electronic NotesElectronic Notes

Prepared by Prepared by Ted AllenTed Allen

Supervising Prosecutor Supervising Prosecutor Region of YorkRegion of YorkOctober 2014October 2014


• Electronic notes (e notes) usually in Electronic notes (e notes) usually in the form of “word” or a computer the form of “word” or a computer program approved by the municipalityprogram approved by the municipality

• They are typed and stored on a They are typed and stored on a computercomputer

• Ability to print and use in courtAbility to print and use in court

• Used in place of handwritten notesUsed in place of handwritten notes


• There isn’t any case law directly on There isn’t any case law directly on point outlining the recording, storage point outlining the recording, storage and use of e notes in courtand use of e notes in court

• Commonplace for enforcement and Commonplace for enforcement and building inspectors to wonder about building inspectors to wonder about the viability of the use of e notes in the viability of the use of e notes in courtcourt

Electronic Notes -Electronic Notes -examples examples allowing the use of e notesallowing the use of e notes

• The Law of Evidence in Canada, The Law of Evidence in Canada, Second Edition, by John Sopinka, Second Edition, by John Sopinka, Sidney N. Lederman and Alan W. Sidney N. Lederman and Alan W. BryantBryant

• Refreshing a witnesses memory – “a Refreshing a witnesses memory – “a witness may rely on any means to jar witness may rely on any means to jar or spark a memory, what triggers or spark a memory, what triggers recollection is not significantrecollection is not significant

Electronic Notes -examples Electronic Notes -examples allowing the use of e notesallowing the use of e notes• McWilliams -Canadian Criminal McWilliams -Canadian Criminal

Evidence Fourth Edition Volume 2 Evidence Fourth Edition Volume 2 • References R v. B (K.G.) “What References R v. B (K.G.) “What

triggers recollection is not significanttriggers recollection is not significant• References Henry v. Lee (1814) in References Henry v. Lee (1814) in

part “it is not the memorandum that part “it is not the memorandum that is the evidence but the recollection is the evidence but the recollection of the witness” of the witness”

Electronic Notes -examples Electronic Notes -examples allowing the use of e notesallowing the use of e notes

• R v Colangelo [2007] O.J. No. 4070 R v Colangelo [2007] O.J. No. 4070 York Region York Region

• ““Perhaps the first rule of the law of Perhaps the first rule of the law of evidence is that all evidence that is evidence is that all evidence that is relevant that goes to prove a fact in relevant that goes to prove a fact in issue and not subject to any issue and not subject to any exceptions such as the rule against exceptions such as the rule against hearsay, is admissible”hearsay, is admissible”

Electronic Notes -examples Electronic Notes -examples allowing the use of e notesallowing the use of e notes• Colangelo Colangelo

– A forgetful witness may rely on any means to A forgetful witness may rely on any means to jar or spark a memory. What triggers jar or spark a memory. What triggers recollection is not significantrecollection is not significant

– Although not the only way, the usual means Although not the only way, the usual means to revive memory is by reference to a written to revive memory is by reference to a written document made at an earlier time by the document made at an earlier time by the witnesswitness

– Officer may give evidence of matters outside Officer may give evidence of matters outside of his notes of his notes

Electronic Notes -examples Electronic Notes -examples allowing the use of e notesallowing the use of e notes

• Case law points towards the use of Case law points towards the use of any means to jar or spark a memory, any means to jar or spark a memory, which indicates e notes are which indicates e notes are acceptableacceptable


• In BCA prosecutions, it is very rare In BCA prosecutions, it is very rare that the notes actually go into that the notes actually go into evidenceevidence

• Your notes are referred to in order to Your notes are referred to in order to give viva voce (verbal) evidencegive viva voce (verbal) evidence


• The case law implies that your notes The case law implies that your notes are used to refresh your memory and are used to refresh your memory and the court will put the proper “weight” the court will put the proper “weight” on your testimony based on your on your testimony based on your memory which is based on the memory which is based on the quality of your notesquality of your notes


• The defense through cross The defense through cross examination has the task of examination has the task of discrediting your testimony in part by discrediting your testimony in part by attacking the quality of your notes. attacking the quality of your notes.


• After the court hears the cross After the court hears the cross examination it can apply the “weight” examination it can apply the “weight” to the evidence based on both the to the evidence based on both the initial testimony and cross initial testimony and cross examinationexamination

• (This can apply whether or not your (This can apply whether or not your notes are electronic or hand written) notes are electronic or hand written)


• Court may apply great weight to your Court may apply great weight to your evidenceevidence

• Court may apply very little weight to Court may apply very little weight to your evidenceyour evidence

• But should not base the “weight” But should not base the “weight” evidence application based on evidence application based on written vs e noteswritten vs e notes


• If you have made written notes to If you have made written notes to use as a reminder for e notes, the use as a reminder for e notes, the written notes need to be saved and written notes need to be saved and submitted as part of the disclosure submitted as part of the disclosure


• E notes and written notes should be E notes and written notes should be treated the same treated the same

-Any problems with your notes -Any problems with your notes should should be disclosed to the be disclosed to the prosecutorprosecutor

-Prosecutor to decide whether to -Prosecutor to decide whether to inform the defense or not proceed to inform the defense or not proceed to

trialtrial


• Bylaw enforcement going to e notesBylaw enforcement going to e notes

• Police agencies going to e notesPolice agencies going to e notes

• Electronic tickets at York Region and Electronic tickets at York Region and beginning in Torontobeginning in Toronto


• London (City) v. Caza [2010] O.J. No. London (City) v. Caza [2010] O.J. No. 10161016

• Justice of the peace quashed 3 tickets Justice of the peace quashed 3 tickets because signature was electronicbecause signature was electronic

• Appeal court ruled signature was Appeal court ruled signature was properly affixed according to the properly affixed according to the officer’s duties pursuant to the officer’s duties pursuant to the Provincial Offences ActProvincial Offences Act


• Courts are being more tolerable to Courts are being more tolerable to modern changes as a result of modern changes as a result of electronic mediums today. electronic mediums today.

• E notes are becoming more E notes are becoming more traditional traditional


• Questions?Questions?

ontario building officials association electronic notes prepared by ted allen supervising prosecutor...

Documents