Le 9 février 2007

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COLLOQUE DE L’ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE 2007

LES CAPACITÉS AFFAIBLIES : interrogatoire et contre-interrogatoire des témoins

Ulrich Gautier

500 Place d’Armes bureau 2350

Montréal, Québec H2Y 2W2

ugautier@videotron.ca

9 février 2007

Table des matières

I. Les notes indépendantes… ……………………………………………………………………………………………3

1) R. v. VANGENT AND GREEN (1978) 42 C .C.C. (2d) 313………………………….…………. 3

2) R. v. GREEN [1998] O.J. No. 3598………………………………………………………………………. 4

3) R. v. MATTIS [1998] O.J. No. 4332………………………………………………..…………………...5

4) R. v. BOWERBANK [2001] O.J. No. 755………………………………………………………………..6

II. La mémoire…………………………………………………………………………………………………………………… 7

1) R. v. AMICHAUD [2002] S.J. No. 337; 2002 SKQB 233…………………………………….…7

III. La fiabilité………………………………………………………………………………………………………………………8

1) R. v. HAYES [2005] O.J. No. 5057…………………………………………………….………………….8

2) R. v. MAKHOTA [2004] O.J. No. 5415; 2004 ONCJ 360………………………………….……8

3) R. v. ZACK [1999] O.J. No. 5747…………………………………………………………………………..9

4) R. v. BURROWS [2004] O.J. No. 5377; 2004 ONCJ 357……………………………….……..9

5) R. v. DOMSKI [2002] O.J. No. 3544…………………………………………….……………………..10

6) R. v. KLICK [2006] A.J. No. 932; 2006 ABPC 165 ………………………………….….…….10

7) R. v. BAILEY [2005] A.J. No. 790; 2005 ABPC 61………………………….….……………….11

8) R. v. PARKINSON [2005] O.J. No. 3480………………………………………………………………11

9) R. v. PIOTROVICH [2004] S.J. No. 268; 2004 SKPC 58…………………………………….12

I V. La collusion ……………………………………………………………………………………..………………………….13

1) R. v. BRYDON [1997] B.C.J. No. 2247…………………………………………………………………13

2) R. v. OWEN [2001] O.J. No 4257………………………………………………………………………..13

V. La preuve contradictoire……………………………………………………………………..………………………14

1) R. c. DESLAURIERS [2000] J.Q. No 310 …………………………………………………………….14

2) R. v. NITSCHKE [2006] A.J. No. 609; 2006 ABPC 116………………………………………14

3) R. v. CLARKE [2004] O.J. No. 84…………………………………………………………………………14

V I. La crédibilité…………………………………………………………….………………………………………………….15

1) R. c. POULIOT [2006] J.Q. No 1734…………………………………………………………………….15

V II. La destruction des notes ………………………………………………………………………………………..15

1) R. c. F.J.U. [1995] 3 R.C.S. 764…………………………………………………….……………………15

2) R. v. LY [1997] O.J. No. 686………………………………....……………………………………………15

3) R. V. PLEMEL [2005] S.J. No. 209……………………………………..………………..……………..15

VIII. Le contre-interrogatoire ………….……………………….………….……………………….…………….15

I. Les notes indépendantes

1) R. v. VANGENT AND GREEN, (1978) 42 C .C.C. (2d) 313

“There remain however, some considerations of credibility. In determining credibility it is necessary always to bear in mind the frailty of human memory.” (p.14)

“It was obvious in assessing their evidence that both relied heavily on the one set of notes that Officer Mortimer had prepared and which Officer Richards had adopted. The Court cannot refrain from criticism of this system […] of two officers purporting one to corroborate the other, and yet relying on one set of notes made up as an aid memoire, as a single aid memoire, by the two officers in collaboration, after the event. Why, the Court asks would the officers not have sat down and made their own notes based on their own independent recollection? Is it because they feared that their independent recollection recorded on the very day of the events might differ? How could it differ, if only the truth were recorded? This is not to suggest that the officers are lying. It is merely an attempt to point out the undesirability of such a practice. It is not too strong […] to suggest that both officers were “reading from the same script”. They were refreshing their memory from the same set of notes, and bearing in mind particularly, the extent to which their independent recollections differed on matters not dealt with by the notes, there is every cause to be suspicious of the accuracy of their evidence.” (p.15)

“That the two officers sat down and collaborated to produce what is effectively one set of notes, after the fact, does nothing so much as leave them open to a charge of “cooking” their notes after the event.”

“[…] it is especially in serious cases like this, far and a way easier to guarantee the integrity of a tape recording than the accuracy of human recollection, after the event as recorded by the two officers acting in concert, on what is essentially one set of notes”.

“[…] the Court has taken into account unfavourably to the prosecution both the method of recording the notes that the officers have testified to (to the extent that even that can be deter- mined)…”)

“Simply stated, the inadequate and primitive facilities and methods provided and adopted by the police in this case have made impossible any determination beyond a reasonable doubt. Whether or not a doubt is raised in the circumstances must surely depend to a certain extent on the accuracy with which observations can be made and recorded, and if the best evidence is consistently denied to the Court by persons in position to furnish it, whether through negligence or design, doubts will continue to exist.”

2) R. v. GREEN [1998] O.J. No. 3598

“Large portions of the police officers' notes regarding the incident were identical. At trial, one officer insisted that he had not collaborated with the other officer in writing up the notes. The other officer initially said the notes were made from his own recollection, but, after cross- examination regarding the identical nature of the notes, he conceded that this could not be coincidental.”

“The accused was acquitted: It was clear from reviewing the police officers' notes that they were a collaborative effort rather than the independent recollections of each officer. The two sets of notes had been prepared together and in consultation. The fact that portions of their notes were identical could not be coincidental. It was not acceptable police practice for notes to be prepared with the degree of collaboration practised by the two officers in this case. The degree of collaboration alerted the court to be cautious in testing the reliability of the evidence given by each officer because the notes themselves may not be reliable.”

“There are important reasons for requiring that officers prepare their notes independently. The purpose of notes made by a police office is to record the observations made by that officer […]However, that officer is not permitted to testify as to the information received from other officers for the purpose of proving their truth. Such evidence hearsay and inadmissible.” (para 19)

“An officer's notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best. If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing" his or her own memory with observations made by someone else. In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else written into the notes without attribution.” (para 20)

“It is common at the outset of any trial to make an order excluding witnesses. The purpose of such an order is to limit the opportunity of witnesses to tailor their evidence, either consciously or unconsciously, as a result of hearing the evidence of other witnesses. Similarly, a common cross-examination technique is to challenge the reliability of one witness' evidence by showing that he or she, prior to trial, discussed that evidence with another witness. Sometimes this may suggest collusion by the witnesses. Most often however it suggests that the witness' evidence should have diminished reliability because the witness' independent memory of an event may have become tainted or coloured, often unconsciously, by what he has been told by another observer of the same event.” (para 21)

“[…] it is nevertheless important that the integrity of each officer's personal observations be preserved as much as possible. One way to achieve that result is for each officer to separately record his own observations in his own notebook as soon as possible after the event. To the extent that the officer obtains information about other officer's observations before doing her notes, her memory may become tainted with the observation of others and both her notes and her own evidence may be rendered less reliable.” (para 22)

“[…] this evidence may be less persuasive. If the officers' notes do not reflect what is their own observations and what comes from others, the judge or jury, in the example I just mentioned, will be unaware that they are not receiving the independent evidence of three separate observers. There is, therefore, a real danger that improper weight will be given to evidence as a result of a misapprehension as to the officers having independent recollections.” (para 23)

“The fact that officers have collaborated on their notes will always cause a trier of fact to give careful consideration to the reliability of that officer's evidence.” (para 24)

“The extent of the collaboration between the officers causes me concern generally because it is poor police practice. It also alerts me to be cautious in testing the reliability of the evidence given by each officer because the notes themselves may not be reliable.” (para 25)

“Since their memories of the details of events are dependent upon their notes, and since the notes are a collaborative effort, I am not able to conclude that the fact that two witnesses recall a particular detail, instead of just one, is at all significant.” (para 30)

“Further, there is reason to believe that the notes are not entirely accurate.” (para 31)

“However, since the notes were not made independently, I am not able to conclude that the note entry made by Police Constable Preston reinforces his evidence at trial. Likewise, I can place no weight on the fact that both officers noted it to be the left hand, as that may be the recollection of only one of them.” (para 35)

“It does however underscore the difficulty in placing too much reliance on the memory of an officer which has been "refreshed" through notes which are not his own.” (para 36)

3) R. v. MATTIS [1998] O.J. No. 4332

“[…] credibility is a major factor in this case.” (para 20)

“The only reasonable inference which can be drawn from the fact that the notebooks were identical is that one of the officers copied the notes of the other. In the recent decision of R. v. Green ¹¹ Malloy, J. commented on the importance of police officers preparing their notes independently:

[para19] There are important reasons for requiring that officers prepare their notes independently. The purpose of notes made by a police office is to record the observations made by that officer. The notes themselves are not admissible as evidence for the truth of their contents. An officer with relevant evidence to offer may testify at trial as to the act or observations made by him or her. However, that officer is not permitted to testify as to the information received from other officers for the purpose of proving their truth. Such evidence [is] hearsay and inadmissible.

[para20] An officer's notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best. If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing" his or her own memory with observations made by someone else. In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else written into the notes without attribution. ”

“The concerns raised by Malloy, J. are particularly relevant in the present case where it was clear that neither Officer Peters nor Officer Birrell had a clear recollection of the events and both wore relying heavily on notes in giving their evidence. ”

“Malloy, J. went on to comment on the effect of collaboration in the making of notes would have on the credibility of the testimony of police officers:

[para24] The fact that officers have collaborated on their notes will always cause a trier of fact to give careful consideration to the reliability of that officer's evidence. There will, however, be situations in which such collaboration, although not good police practice, will not undermine the testimony of the officers. The extent to which the collaboration renders the evidence of the officers' unreliable will depend on the circumstances of each case and the explanation given by the officers. ”

“In the present case no explanation was offered as to how the notebooks could be identical. The obvious fact that the notebooks were copied combined with the lack of any explanation as to how this occurred and the lack of specific recollection by both officers has a significant impact on the reliability of the evidence. Absent confirmation of that evidence in material particulars, it would be unsafe to base a conviction on it.” (para 21 to 23)”

4) R. v. BOWERBANK [2001] O.J. No. 755

“I am also conscious of the fact that both officers conceded that they consulted with one another during the course of preparing their notes. Given the important role that those notes play in police testimony, that is a practice that should be discouraged: see R. v. Green, [1998] O.J. No. 3598. It raises questions about the independence and reliability of the evidence of the officers in question.” (para 47)

“[…] there is good reason to be concerned about the testimony of the police officers.” (para 48)

II. La mémoire

1) R. v. AMICHAUD [2002] S.J. No. 337, 2002 SKQB 233

“It is argued on behalf of the accused that Cst. Panko's evidence regarding dates, places and timing of the demand was based solely on notes made by Cst. Edwardsen, who did not testify, and therefore all of the evidence in respect of those matters was inadmissible as hearsay.” (para 20)

“Cst. Pan ko did not make his own notes of the event. He acknowledged that he reviewed Cst. Edwardsen's reports before the trial. He did not state that the report and notes had been reviewed at a time when he could verify their accuracy, nor did he state that his review prior to trial had served to refresh or revive his own memory. ”

“In effect, the appellant argues that Cst. Pan ko did not "rely" on the report and notes to refresh his memory, but that he simply "relayed" the information in the notes at the trial. In that way, the Crown was allowed to adduce the information in Cst. Edwardsen's police reports, as reviewed by Cst. Pan ko, without calling Cst. Edwardsen to the stand and making her available for cross-examination.” (para 21-22)

“A witness may refresh his or her memory prior to testifying, as long as he or she testifies from present memory revived from by the instrument that refreshed it, whatever that instrument may be.” (para 23)

“[paragraph]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. In some cases, the witness whose memory at trial cannot be revived can testify as to the accuracy of a past recording of a then existing memory, under certain conditions that are meant to alleviate the concerns arising from the hearsay rule. The past recording, or verification of a recording, must have been made contemporaneously to the event recorded, when the memory of the witness was still fresh, and the witness must swear that the recording represented then his or her accurate recollection.” (para 23) (citation de R. v. Fliss, 2002 SCC 16 [2002] S.C.J. No. 15)

“[…] 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” (para 24) (citation de R. v. Fliss, 2002 SCC 16 [2002] S.C.J. No. 15) (Binnie J.)

“[paragraph]46 The problem in this case is that what was given in evidence went beyond what the officer could recall -- aided or not -- either at the time of trial or at the time he proofread the transcript on January 30, 1997 . The Charter problem arises with respect to those parts of the testimony that the officer could not recall either at trial or during the earlier "proofreading" exercise he undertook on January 30, 1997 […]The result was to allow the prosecution to put into evidence indirectly what the exclusion order forbade it from doing directly.” (para 24) (citation de R. v. Fliss, 2002 SCC 16 [2002] S.C.J. No. 15) (Binnie J.)

“Cst. Pan ko's review of the report and notes revived or refreshed his independent memory of events, his evidence was admissible. Conversely, if his evidence was based solely on the report and notes, it was inadmissible as hearsay. ”

“The problem arises when the court attempts to distinguish between the portion of Cst. Pan ko evidence that was independently remembered (or was based on a "refreshed" or "revived" memory), and the portion that was based solely on what was contained in Cst. Edwardsen's report and notes. That distinction is critical to both the admissibility of the evidence and the weight to be given to it. It was for the trial judge to decide if Cst. Pan ko was simply relaying information contained in the police report and officer's notes or whether he had relied upon the reports and notes to revive an independent recollection. Only then could he decide what portion of his evidence was admissible, and the weight to be given to it.” (para 25-26)

“What is important is that all of the essential elements of the confession were still present in the officer's mind at the date of the trial.” (para 27) (citation de Fliss, Binnie J.)

III. La fiabilité

1) R. v. HAYES [2005] O.J. No. 5057

“The officer had no notes - Independent recollection of officers was not sufficient.” (résumé)

“I don't find it acceptable for the police to say on matters of significant importance that they don't make a note of it simply because something didn't go wrong, that was good enough for them.” (para 8)

“[…] the absence in the police officer's notes of specific recollection of the important information have allowed me to conclude that that information, that evidence is not reliable. In other words, for an officer to come to court and simply say I have an independent recollection doesn't cut it in this court. Not in front of me. ” (para 9)

“[…] And consistent with that view it's my thought and it's shared by many members of this Bench that it's important that the police have in their notebook accurate, complete information about specific issues that are called into play in the prosecution.” (para 9)

“In this case, the officer had absolutely no note at all about anything related to his training or what happened on this occasion. Nothing. He said simply that I don't make a note unless something goes wrong. That's not fundamentally sound.” (para 10)

2) R. v. MAKHOTA, [2004] O.J. No. 5415; 2004 ONCJ 360

“The absence of notation of the information upon which the breath demand was made was fatal to the case. […] Given the absence in the second officer's notes that Makhota had alcohol in his system, his evidence was also unreliable in this regard.” (résumé)

“That crucial observation, suspicion and opinion, however, appeared nowhere in the officer's notebook.” (para 18)

“Given the absence in his notes of that crucial information, namely that the officer reasonably suspected that the defendant had alcohol in his system, I cannot safely conclude that his evidence is reliable. The absence of crucial notation of information in this case upon which the s. 254 demand was made is fatal.” (para 18)

"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 peace officer to say, I did not note it because I would remember it.” (para 18) (citation de R. v. Zack [1999] O.J. No. 5747) Duncan . ”

“It was necessary for the officer at least somewhere, maybe not necessarily in his notebook to note the significant observations that he made. In my view, the absence of the questioned observations in his notebook, leads to the conclusion that these observations were not in fact made at the time but were perhaps, something, that over the course of time, the officer came to believe he saw. I cannot accept on the balance of probabilities that these observations were made. ”

3) R. v. ZACK [1999] O.J. No. 5747

“The officer did not make a note of his observation of her unsteadiness on her feet or her confusion. He explained that he did not note it because he would remember.”

“The evidence was inadmissible. The omission in the officer's notes was serious and his testimony in that regard was excluded.”

“It is noteworthy that the very experienced officer did not have in his notes the observation of her unsteadiness on her feet, nor that she was confused.” (para 4)

“The failure to note these observations is a serious omission and… 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.” (para 6)

4) R. v. BURROWS, [2004] O.J. No. 5377; 2004 ONCJ 357

“Police, routinely, note significant events in their memo books. It serves as an aide memoir. It assists in refreshing memory. It adds confidence to the evidence which is often given months and months later. With respect to this police officer, it cannot be acceptable to say: I didn't note it down because I would remember it. Not when it comes to important details. It is necessary for the officer to note down, somewhere, significant observations.” (para 38)

“If the peace officer had noted that in her memo book, it would have been there to assist her in remembering and, of course, it would have provided confirmatory evidence as to its existence” (para 40)

“In my view, the absence of suitable questioning and the absence of questioned observations in her notebook lead to the conclusion that important steps to ensure that there was no mouth alcohol were not taken by this officer. The absence of any notes to that effect only heightens and deepens, at the same time, the court's concern.” (para 41)

“The officer was required to turn her mind to the issue in the circumstances. She was required to satisfy herself that the demand that she was to make would provide a suitable and reliable sample into an approved instrument. I find that she did not do this.” (para 42)

“The sample obtained was not reliable and, therefore, provided no basis for reasonable and probable grounds to arrest the defendant nor to make a demand that he provide a sample of his breath.” (para 43)

5) R. v. DOMSKI [2002] O.J. No. 3544

“[…] the police have, I think a statutory duty, but certainly a duty in terms of what goes on in court of keeping a proper record of what occurs […]He did not record, I would think the bulk of whatever conversation occurred with respect to the right to counsel and he, when asked specifically about conversations other than those that he did record, referred to his habitual practice and his own confidence that something or other would have occurred in a certain way. It is not satisfactory. Whoever has the onus, the police have the control over the record keeping as it relates to their interactions with members of the public. It does not enhance the prosecution for a police officer to come to court and be relying on his memory, if not his wishful thinking for the bulk of his evidence on crucial issues.” (para 1)

“The court cannot tolerate a slackening of standards with respect to the gathering of conscripted evidence.” (para 2)

6) R. v. KLICK [2006], A.J. No. 932; 2006 ABPC 165

“Rather he indicated that he had a standard practice and that he had a specific recollection of complying with that standard practice in the case of the accused.” (para 32)

“ It is certainly true that the failure to document relevant material aspects of a police officer's investigation in police notes may give rise to concerns with respect to the Court's acceptance of the officer's later evidence that he recalls undertaking certain activities or actions even though they are not documented in his notes. It is always risky for an officer to testify that he or she recalls performing certain activities in a particular case even though those are not documented in notes.” (para 34)

“There may well be a serious problem for the officer with respect to credibility or at the very least the weight to be given to testimony which relies upon officer recollection not documented in notes, or which relies upon a combination of standard practice and recollection not documented in notes. ”

“In this respect, the Court notes specifically the decision in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) and the commentary of that Court at para. 6:

[paragraph]6 It is common ground that it is Jackson 's grounds that must be assessed and they must be assessed subjectively and objectively. With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to Jackson . 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 a balance of probabilities, that those observations were made.

“Of course, it is open to the Court in this case to take a number of courses of action and reach a number of potential conclusions in connection with an officer who testifies about certain events occurring which are not recorded in his or her notes. The first and most obvious is that the Court may conclude that the event did not occur at all. The second is that the Court may accept a recollection not recorded but place little or no weight upon it in satisfying the onus that lies upon the Crown in connection with s. 10(b) compliance. The third is that the Court may conclude that the officer is utilizing his notes as an aid to recollection and that the officer is not "making the evidence up" or attempting to rely on standard practice as proof that the officer undertook certain actions.” (para 35 to 37)

7) R. v. BAILEY [2005] A.J. No. 790; 2005 ABPC 61

“Two indicia of impairment, Bailey's slurred speech and his difficulty in locating documents when pulled over by an officer, were not contained in the officer's notes, but the officer did mention these facts in her testimony.” (résumé)

“The officer's notes, while brief, included several indicia of impairment. It would be unreasonable to expect the officer to record every detail of her interaction with Bailey. The omissions did not constitute a breach of Bailey's rights.”

8) R. v. PARKINSON [2005] O.J. No. 3480

“They both added items of evidence which had not been mentioned before or were not in their notebooks. By accepting their evidence, the trial judge implicitly accepted their explanation for the additions. Once the officers were found to be credible and reliable, the additions were not critical.”

“[…] both officers gave evidence which was not included in their notes or disclosed statements, the previous inconsistent statements of at least the first officer […]nd Constable Parent's unreasonable explanation that "driving in the curve lane" meant that he was swerving in the curb lane.” (para 8)

“Their lack of candour was an issue which had to be examined, particularly when the trial judge relied upon a minor contradiction in the appellant's evidence in rejecting it. It is an error to apply a different standard to the Crown and defence evidence.” (para 9)

“In R. v. A.S. [2004] O.J. No. 4652 (Ont. C.A. )(QL), the trial judge concluded the complainant was not shaken in cross-examination in regard to the essential elements of the offence. The Court of Appeal found it was not apparent on the record how that conclusion could be reached, particularly since the complainant gave three different versions of the last two incidents.” (para 10)

“That an officer or any witness testifies to facts which they had never previously mentioned, goes to the weight of their evidence.” (para 13)

9) R. v. PIOTROVICH, [2004] S.J. No. 268, 2004 SKPC 58

“Officer heard only some what was said and then only recorded the phrase that he deemed to be relevant” (para 2)

“At one point he heard Mr. Piotrovich state that he wanted to do the test again and he promised that he "wouldn't screw around". He told the Court that it was a direct quote, referring only to the words "wouldn't screw around". He did not record the words that preceded or followed these three words. He merely advised the Court of the gist of what he heard.” (para 15)

“He did not hear all of what was said by the Accused […]He heard only parts of the conversation. Of that which he heard, he made notes only of that which he thought was important.” (para 17)

“a) Was the partially heard and partially recorded statement of the accused, admissible?”

“In R. v. Ferris, supra, the Court was concerned with the admissibility of three words, "I killed David". The Officer who overheard these words was unable to say what was said before or after the statement” (para 24):

“The facts of this case are unique in that there exist no circumstances or context from which the true meaning of the words can be inferred.”

“There is no way of determining the meaning or thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words.”

“Without meaning being ascertainable the words are not relevant to any fact in issue and they have no probative value.” (para 24 citation de R. v. Ferris para 17)

“This is not a question of weight. The question is whether or not this accused made a statement which is relevant. […]However, because the Crown case makes it clear words were spoken before and after, and the utterance was incomplete, it is impossible to ascertain the meaning of the words. Thus no weight can be given to it and the prejudice of its introduction is easy to contemplate. There is a real prejudice of forbidden reasoning here.” (para 25 citation de Ferris para 27).

“With respect to the issue of the police choosing to record only that which they believe to be pertinent” (para 26):

“I agree with the comments of Barrette-Joncas in R. v. Smith (1981), 60 C .C.C. (2d) 327 (Qué.S.C.)(p.328) :when rejecting the admissibility of an incomplete confession she stated:

“The Court cannot accept that police officers edit a declaration by taking down what they think is pertinent and only bring before the Court an edited version of what an accused has said, thereby forcing him to testify as to what was left out. An accused who makes a declaration that the Crown sees fit to bring in evidence is entitled to have it brought in its entirety before the jury, subject obviously to its pertinence. But it is not for the police officers to decide what is pertinent and what is not.” (para 26).

“A trier of fact could not ascertain the accused's meaning when he uttered the words.” (para 27)

“[…] the facts on this voir dire to be analogous to those discussed in R. v. Ferris. In addition to the fact that he only heard part of what the Accused said, he also chose to write down only those words that he found to be relevant. Even at that he was quiet imprecise. I had no hesitation in ruling these words to be inadmissible. Given the lack of context, it was impossible to ascertain their true meaning. The implication was that the Accused had deliberately wasted the Officer's time throughout the five roadside screening attempts and this would have been prejudicial to the Accused. It would be dangerous to admit such an incomplete statement.” (para 28)

I V. La collusion

1) R. v. BRYDON [1997] B.C.J. No. 2247

“Considering that the complainants all discussed the evidence, their testimony became unreliable.” (résumé)

“[…] where the complainants or witnesses have had the opportunity to discuss what they have to say, there comes to be a possibility that their evidence will be contaminated by what they have discussed.” (para 118)

“The possibility of such contamination must be considered by the trier of fact.” (para 118)

“Of these complainants, all have, in varying degrees, been at least careless of the truth on occasion.” (para 123)

2) R. v. OWEN [2001] O.J. No 4257

“The fact that he found that the officers collaborated when preparing their notes and their lack of candour with respect to this issue at trial constituted a striking weakness in their evidence.”

“It was apparent that the police officers had closely collaborated in the preparation of their notes. However, both officers testified under oath that they had prepared their notes independently and denied collaborating. The trial judge found that the two police officers had indeed collaborated when preparing their notes but he gave little or no weight to this weakness in their evidence. Given the importance of their notes as a record of the alleged assault, this lack of candour of the police officers presented a striking and fundamental weakness in their evidence, certainly more significant than anything mentioned by the trial judge with respect to the appellant's evidence.” (para 2)

V. La preuve contradictoire

1) R. c. F.J.U.[1995] A.C.S. No 82

« Lorsqu’une personne témoigne sous serment dans un procès et donne une version du récit différente de celle auparavant consignée, elle suscite des doutes sur sa crédibilité et sur la véracité des deux versions du récit.» (para 38)

2) R. c. DESLAURIERS [2000] J.Q. No 310

« Un doute raisonnable peut provenir de la preuve, d'une contradiction dans la preuve ou d'un manque de preuve. Le doute raisonnable peut exister sans qu'aucune preuve ne soit présentée par l'accusé. Le juge ne pouvait pas exiger de l'appelant, pour le faire bénéficier du doute raisonnable, qu'il fournisse une preuve claire, précise, cohérente et digne de foi. Cela enfreindrait les principes fondamentaux sur la présomption d'innocence et le fardeau de preuve qui incombe au ministère public.» (para 15)

3) R. v. NITSCHKE, [2006] A.J. No. 609, 2006 ABPC 116

“[…] the material differences in their respective testimonies with respect to the driving pattern of the accused leads the Court to have a reasonable doubt as to the guilt of the accused on the charge of impaired driving per se.” (para 10)

4) R. v. CLARKE [2004] O.J. No. 84

“P.C. Jansz testified that he was driving” (para 3)

“Sergeant Brown was called by the defence…:

Q.: Who was driving the car?

A.: I was driving the car.

Q. Are you sure about that?

A.: Absolutely, Sir.

Q.: Okay, is it possible on that day that officer Gavin Jansz may have been driving, Sir?

A.: No Sir.

“…there were no features of the evidence that depended on a resolution of the issue as to who was driving the police vehicle […] the learned trial judge said:

"In my view, the discrepancies between Constable Jansz and Sergeant Brown aren't such that they constitute materially distinguishing features on important pieces of evidence".”(para 5)

“I disagree and hold that these discrepancies raise a reasonable doubt” (para 6)

V I. La crédibilité

1) R. c. POULIOT [2006] J.Q. No 1734

« Le Tribunal s'étonne de ce commentaire dans un contexte où il semble vouloir démontrer que l'accusé n'a pas toutes ses facultés, mais qu'en fait ce fait parle peu de lui-même s'il n'est accompagné d'autres éléments. Il est manifeste que le policier Plante a mis beaucoup d'énergie à témoigner avec le plus de détails possibles. Cependant, dans les faits, il a donné la perception au Tribunal qu'il voulait le convaincre du bien-fondé de la poursuite. Tel n'est pas son rôle, il doit s'en tenir à témoigner sur les faits. Par ailleurs, le Tribunal note que le rapport des agents de la paix a été rédigé sept jours plus tard et que les propos rapportés n'étaient probablement pas tout à fait exacts et étaient colorés de cette perception d'une reconstitution de la mémoire. » (para 38)

V II La destruction des notes

1) R. v. LY [1997] O.J. No. 686

“Investigating officer destroying original notes describing accused after broadcasting description of accused to another officer who noted it and after transcribing original notes in his police book – Ability of accused to make full answer and defence not impaired by destruction of original notes.” (résumé)

2) R. V. PLEMEL [2005] S.J. No. 209

“The practice of taking temporary notes and then destroying them after the information was transposed to an officers’ notebook was to be strongly discouraged.” (résumé)

“[…] like the learned trial judge, I would strongly discourage the practice of making temporary notes and then destroying them after the information is transposed into the officer's standard issue notebook. Such a practice leaves open the possibility of error in the process of transferring the information or of inadvertent loss of the notes. If notes are made on other pieces of paper, those notes should also be kept and disclosed.” (para 61)

V III Le contre-interrogatoire

-Interrogatoire des témoins dans un procès de conduite d’un véhicule à moteur avec la capacité affaiblie par l’effet de l’alcool ou d’une drogue.

-Comité d’inspection professionnelle – une adaptation autorisée de “practise checklists manual” publiée par la Law Society of Bitish Columbia.