R. v. Vandemunt, 2011 ONCJ 844

Information 00 1534323Z Citation: R. v. Vandemunt , 2011 ONCJ 844 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN -and- EDWARD VANDEMUNT ********** RESERVED REASONS FOR JUDGMENT HORNBLOWER, J. : The issue on this appeal is the extent to which the failure by an officer to make written notes that reflect critical observations is a factor in assessing the reliability of that evidence from the officer. THE FACTS The Appellant, Edward Vandemunt, was charged under Section 107 (11) of the Highway Traffic Act with driving a commercial motor vehicle with a major defect in it.

The investigating officer, Matthew Alexander, enforced the Highway Traffic Act for the Ministry of Transportation. In giving his evidence, he relied on notes he had made at the time of his investigation. In using the notes, he

testified that he had an independent recollection of the events. In performing his inspection of the vehicle the officer determined that two of the vehicle’s brakes were out of adjustment. In order to make that determination, the officer had to follow a specific testing protocol set out in the Regulations. In his evidence in-chief, he described the various steps he took to conduct the test. One of the critical steps was to have the air pressure on the brake line at between 90 and 100 PSI during the testing.

The officer testified he had the driver do that and verified the PSI was within the required range by looking at the pressure gauge on the dashboard of the vehicle. Once that test was completed, he again made observations of the pressure gauge and verified that the pressure was still within the appropriate range. The officer was cross-examined with respect to the steps he took to verify the pressure and specifically whether he had made a note of the observations he made of the air pressure. He testified he made no such note and then gave evidence as to his normal practice. Counsel for Mr.

Vandemunt argued that the failure to note a significant observation went to the officer’s credibility. Counsel relied upon various decisions in Criminal Code matters where courts have held that the failure to make a specific note of a critical observation goes directly to credibility and that the failure to note such critical observations permits a court to reject such evidence. In convicting the accused, the Justice of the Peace rejected that argument.

She found that the officer had an independent recollection, that he gave consistent evidence and that it was his evidence, presumably the viva voce evidence, that the court had to consider as to reliability. In rejecting the defence argument with respect to the failure to note the critical observations in his notebook, the Justice of the Peace stated the following: “I will say that there is a much higher standard dealing with criminal matters and that the Rules of Evidence are stricter and for these reasons this court reaches a finding that the criminal case law not apply to Regulatory matters.”

The law with respect to deficiencies in notes is succinctly discussed by Justice Fournier in R. v. Odgers [2009] O.J. No. 2952 as follows: “It can be of particular concern in instances, when events or observations of obvious relevance and importance, are omitted or not adequately documented in the notebooks of officers. In such instances, the courts have demonstrated a heightened awareness of the evidentiary dangers such deficient notes present to a trier of fact. When serious inadequacies are demonstrated, the credibility of police officers can in fact be discounted.

It goes without saying that the absence of notes on an important factor is relevant to an officer’s credibility. As a result the courts have on occasion been reluctant to attribute much weight to evidence adduced viva voce by an officer in the absence of corroborating written references in that officer’s notebook. Ultimately however, this is a matter of common sense and as usual each case must be determined on its merits.” When the Justice of the Peace indicated that there is a much higher standard dealer with criminal matters as opposed to Regulatory matters, she was in error.

The standards are identical: proof beyond a reasonable doubt with respect to each element of the offence. Except to the extent which the Ontario Evidence Act may provide otherwise, the Rules of Evidence are as strict for Regulatory matters as they are for Criminal Code matters. To the extent that the Justice of the Peace held otherwise, she was in error. In convicting the accused, the Justice of the Peace made a finding of credibility with respect to Officer Alexander.

In coming to that conclusion, it is apparent that the Justice of the Peace did not believe that she was entitled to take into account the lack of any notation with respect to his observations of the PSI. I am unable to conclude that her finding of credibility would have been the same had she understood that the absence of a written note on that important piece of evidence was a factor relevant to assessing credibility. It may well be that in assessing credibility, the Justice of the Peace would have concluded that the absence of a note was of no particular consequence in light of all the other evidence she heard.

However, given the errors, the conviction cannot stand. Accordingly, the appeal is allowed and a new trial is ordered.

___________________________________ Mr. Justice G. M. Hornblower Dated: December 5, 2011