Mississauga (City) v. Vattiata, 2010 ONCJ 588

COURT FILE NUMBER: 3111-999-00-87462896 DATE: 2010-11-29 (Brampton) Citation: Mississauga (City) v. Vattiata , 2010 ONCJ 588 ONTARIO COURT OF JUSTICE BETWEEN: THE CORPORATION OF THE CITY OF MISSISSAUGA Appellant — AND — ANTONIO L. VATTIATA Respondent Before Justice D.A. Harris Argued on September 24, 2010 Reasons for Judgment released on November 29, 2010 H. Bourgeois, Prosecutor ............................................. agent for the Appellant C.

Walpole ................................................................ agent for the Respondent REASONS FOR JUDGMENT HARRIS J.: [ 1 ] Antonio Vattiata was charged with failing to properly wear a seat belt contrary to s. 106(2) of the Highway Traffic Act of Ontario. [ 2 ] At trial, the Prosecutor called one witness, Provincial Constable Thomas Williams.

Early in his evidence, the presiding Justice of the Peace made a ruling that Constable Williams could refer to his notes to refresh his memory with respect to particulars such as numbers, and that he was then to close his notebook before giving his evidence. [ 3 ] Following this ruling, the Prosecutor chose to lead no more evidence. The presiding Justice of the Peace then dismissed the charge. [ 4 ] This is an appeal against that dismissal and against the ruling.

The Prosecutor has indicated however that if the appeal is allowed, she will not be asking for a new trial to be ordered but rather will be asking that the charge be stayed. [ 5 ] Police officers routinely ask permission to refer to their notes to refresh their memories when giving evidence in court. This is understandable. Police officers are called upon to give evidence that is precise in its details but also repetitive. They cannot possibly recall all of the details of each and every case and so they make notes to trigger their recollection of the events.

To use the current case as an example, it is quite possible that Constable Williams had investigated other cases where he charged someone with failing to properly wear a seat belt. There would be certain similarities in each of these cases but there would also be differences. Constable Williams would need to have a superhuman memory if he was required to give his evidence with respect to one particular case without the assistance of his notes. [ 6 ] Clearly, he does not have to do so. Neither does any other police officer nor any other witness who has made notes.

On the contrary, nearly every one of them will be questioned as to when and how they made their notes and the court will be asked to rule on whether they may refer to those notes in order to refresh their memory. Almost invariably, the court will allow the police officer or other witness to do so. [ 7 ] Authority for this can be found in the decision of the Ontario Court of Appeal in Fleming v. Toronto R.W. Co., [1911] O.J. No. 40 (Ont. C.A.) where MacLaren J.A. wrote at para. 23:

The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466 , as follows: "A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. ... The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct." [ 8 ] Various courts have allowed memory to be refreshed by many different kinds of material. [ 9 ] In R. v.

Fliss, 2002 SCC 16 (CanLII) , [2002] S.C.J.

No. 15 the Supreme Court of Canada allowed the police officer to use the transcript of an electronic interception that was held to have been obtained in violation of s. 8 of the Charter and which was thereby excluded from evidence. [ 10 ] Arbour J. stated at para. 8: A witness may refresh his or her memory prior to testifying, as long as he or she testifies from present memory revived by the instrument that refreshed it, whatever that instrument may be. [ 11 ] Binnie J., also writing in Fliss , stated at para. 45 : There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence.

This is because it is his recollection, not the stimulus, that becomes evidence. The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background. If the recollection here had been stimulated by hearing a tape of his conversation with the accused, even if the tape was made without valid authorization, the officer's recollection -- not the tape -- would be admissible. [ 12 ] In R. v. Mahoney , [2005] O.J. No. 1286 (Ont.

C.J.) Chester J. allowed a police officer to refer to information entered by him into a template which had been designed by the officer. [ 13 ] Nadel J. in R. v. Kassam , [2007] O.J. No. 2104 (Ont. C.J.) and Lampkin J. in R. v Colangelo , 2007 ONCJ 489 (CanLII) , [2007] O.J. No. 4070 (Ont. C.J.) both ruled that it is not necessary that the police officer have an independent recollection of the events prior to reference to his notes.

It is enough that he has an independent recollection of the events after referring to the notes. [ 14 ] All of the cases indicate that a great deal of leeway should be given to allow witnesses to refresh their memory. After that, it is up to the trier of fact to determine what weight should be given to the evidence. [ 15 ] This is reflected in the comments of Berger J. at para. 10 in R. v. Bengert (No. 5) , [1978] B.C.J.

No. 1036 (B.C.S.C.) where he said: Of course, there is a risk in allowing Dunn to refer to his notebook, a risk that he may simply recite what is in his notebook without a genuine recollection of the events described. But in any case it must be a question for the jury to decide to what extent he is relying on his present memory in giving his evidence in such circumstances. [ 16 ] It is also reflected in the comments of Osborne J.A. in paras. 18 and 19 of R. v. K.G.B. , 1998 CanLII 7125 (ON CA) , [1998] O.J. No. 1859 (Ont.

C.A.) where he wrote: 18 I see nothing wrong with either witness reviewing her police statement before testifying. There is also nothing wrong with a defence counsel attempting to determine in cross-examination whether Mrs. D. or Mrs. McD. had a present memory of events about which she testified. What triggers recollection is not significant. This was long ago made clear in 1814 in Henry v.

Lee (1814), 2 Chitty 124, where Ellenborough L.C.J. said: If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence but the recollection of the witness. [Emphasis in original.] See also R. v.

Muise , (1974), 1974 CanLII 1551 (NS CA) , 22 C.C.C. (2d) 487 . 19 There is a danger in allowing the phrase "refreshing memory" to apply to those cases where the witness has no present memory, but is able to state that she accurately recorded a past event. In such cases, the witness has no present memory. The evidence, to the extent there is any, is the past record.

When a witness refreshes her memory from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact, as happened here. [ 17 ] The presiding Justice of the Peace recognized all of this in the case before me and she did allow Constable Williams to refer to his notebook in order to refresh his memory. [ 18 ] I find however that she then placed restrictions on the extent to which he could do this, and in doing so Her Worship committed reversible error in law. [ 19 ] The first restriction was to limit Constable Williams to using his notes to refresh his memory as to numbers only.

This may or may not have been Her Worship’s intention, but unfortunately her ruling was ambiguous enough on this point that the Prosecutor could reasonably have interpreted the ruling in that fashion.

[ 20 ] Constable Williams was entitled to refresh his memory with respect to all particulars of the case and not just dates, times or other “numbers”. [ 21 ] The second restriction placed on Constable Williams was that the presiding Justice of the Peace instructed him to close his notebook after reading his notes but before answering any questions. [ 22 ] There may well be times when it is appropriate to give such instructions to a witness but this should be the exception rather than the rule.

The record in this case discloses no reason for such instructions to be given here. [ 23 ] I can speculate that Her Worship wanted to ensure that Constable Williams did not simply read from his notes. However, a trier of fact should be able to observe if and when a witness is doing this and tell the witness to stop. If the witness does not, it might then be appropriate to instruct the witness to close the notebook. Certainly, this would become a factor to be considered in determining how much weight to attach to the witness’ evidence. Opposing counsel can cross-examine a witness on this issue as well.

So it is not necessary to force every witness to close their notebook or set it aside in order to prevent the witness from reading from it. [ 24 ] In this case the presiding Justice of the Peace erred when she insisted that Constable Williams close his notebook before giving his evidence. [ 25 ] I wish to indicate at this point that I do not approve of the Prosecutor’s decision to simply stop asking questions and to lead no further evidence following the adverse ruling in this case. She should have continued with her case and let the entire record reflect the extent to which the ruling affected that case.

Constable Williams might have given sufficient evidence to support a conviction. Conversely, he might have given evidence that supported an acquittal on some other basis. All this is conjecture on my part because the Prosecutor simply chose to give up in that forum and then seek her remedy here, on appeal. This is not a practice that should be continued. [ 26 ] Despite this, I find that the presiding Justice of the Peace did err in law here. The appeal is therefore allowed. The acquittal is set aside. At the request of the Prosecutor, the charge is then stayed.

Released: November 29, 2010 Signed: ________________________ Justice D.A. Harris