Cross Examining Police Witnesses

CROSS-EXAMINING POLICE WITNESSES: THINKING OUTSIDE THE TOOL BOX 43rd Annual CLA Fall Conference – October 30th, 2015 Michael D. Edelson C.S. INTRODUCTION In criminal litigation virtually everything is contextual. The fundamental principles underlying the cross-examination of police witnesses must always be kept at the forefront of every defence counsel’s mind when conceptualizing the approach to be taken in any particular case. Some of this will apply to lay witnesses. They will inevitably play a vital role in the judge’s decision in all cases.

If anything, too much deference is accorded to the testimony of police officers, in part, because of one of the core values of policing namely, the “moral and legal duty to tell the truth.”

Here, I will focus on the four key legal concepts counsel must always be thinking about in planning the cross-examination of police witnesses. Why? Because you should be returning to them in your closing submissions and analysis of the case.

1. CREDIBILITY AND RELIABILITY Every trial book should contain the following excerpt from R v. Morrissey (1995), [1995] O.J. No. 639 at para. 33 (Ont. C.A.). This explanation of these two distinct legal principles should be at the beating heart of your cross-examination: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’ sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’ testimony. The accuracy of a witness’ testimony involves considerations of the witness’ ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’ credibility. When one is concerned with the accuracy of a witness’ testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.1

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R v. Morrissey, [1995] O.J. No. 639 at para. 33 [emphasis added].

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Counsel often give little or no thought to attacking the credibility of police officers i.e. their willingness to be truthful. They view it to be a fool’s errand. But this consideration is case specific and should not be abandoned in every case.

Reliability on the other hand is a prime area to pursue in your cross-examination: 1) the officer’s reliance upon hearing information; 2) mistaken observations; 3) inaccurate or false notemaking; 4) the absence of notes entirely; 5) general problems with recollection. These are but several of the notable areas to pursue.

2. LOGICAL INFERENCES This definition is also drawn from the comments of Doherty J.A. in R. v. Morrissey. Later in this paper it will be illustrated how they are intrinsically linked to the execution of your successful cross-examination of officers: A trier of fact may draw inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.2 3. BIAS, PARTIALITY AND LACK OF INDEPENDENCE Although these concepts are most often associated with the evidence of expert witnesses, in a surprising number of otherwise mundane police investigations, these insidious elements are infecting police thinking and conduct.

Counsel must be cognizant of the legal and evidentiary implications of police tunnelvision and confirmation bias.

As you review the disclosure and gather your witness evidence continually ask yourself: “Did the officer conduct a fair, reasonable, balanced and unbiased investigation.”

By way of example consider the context of domestic assault investigations; virtually all police officers are operating, at the investigative stage within a “zero-tolerance” regime.

Thus, if an officer concludes that he or she has reasonable and probable grounds to arrest your client, then he is on his way to the detachment.

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R v. Morrissey, [1995] O.J. No. 639 at para. 52.

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Ask yourself, does this regime represent a biased approach to police investigations from inception forward? Is tunnel vision and confirmation bias not a hallmark of such policies?

In dealing with the definition of bias the Supreme Court of Canada, in a recent landmark civil case dealing with expert evidence, stated that: “It must be unbiased in the sense that it does not unfairly favour one party’s position over another.”3 Therefore, let us consider what questions would be effective to pursue in this scenario: a stripped down allegation of assault with no injuries and bare allegations by the spouse: Q: Do you believe that it is your sworn duty to conduct a fair investigation?

A: Yes Q: Officer, do you believe that it is your sworn duty to conduct an objective investigation, acting reasonably?

A: Yes. Q: Officer, do you believe that it is your sworn duty to show no favour to one party over the other in this investigation?

A: Yes. Q: Do you accept that you have a duty to be balanced in your approach when interviewing both parties?

A: Yes, Q: How then do you explain your arrest of my client without a single word being spoken to him seeking his side of the story while spending 35 minutes obtaining only one side of the story, that of his spouse?

A: I can’t.

Q: Constable what is tunnel vision?

Q: What is confirmation bias?

Rarely, if at all, will the officer be able to provide accurate answers to the last two questions.

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White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

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Once you have set this stage you may want to follow-up with a series of questions enumerating the lingering family court consequences flowing from the officer’s charging decisions, including reference to the charges and details of them in family law affidavits.

4. WEIGHT The cross-examiner should not forget about this central concept at the front end i.e. when conceptualizing a successful cross-examination and not reserve consideration of it until closing submissions. Justice Paciocco and Professor Stuesser remind us to avoid confusing “relevance” and “weight” of evidence. An officer’s evidence will be considered admissible if it is relevant and material; weight plays no role at this stage. It is entirely up to the trier of fact to determine how much weight will be attributed to the admissible evidence.4 More importantly, for our purpose, “thinking about weight in this way will assist in preparing cross-examinations, and in making arguments.”5 By approaching your cross-examination of officers in this way counsel will highlight for the judge the core factors to be considered during the decision-making process itself, namely those underlying principles adverted to above.

There is no rationale why the approach advocated in Graat, [1982] 2 S.C.R. 819, cannot be advanced for attributing less weight rather than more to the evidence of officers, who may have a stake in every type of investigation: “The credit and accuracy of the police must be viewed in the same manner as that of other witnesses and in the light of all the evidence in the case. If the police and traffic officers have been closely associated with the prosecution, such association may affect the weight to be given to such evidence.”6

David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: 2015, Irwin Law).

David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: 2015, Irwin Law).

6 R. v. Graat, [1982] 2 S.C.R. 819 [emphasis added].

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THE TOOL BOX When you are taking inventory of the tools in your cross-examination tool box, what do you have available? What thought have you given to adding further tools to the tool box? The use of the same old tools will not always complete every job successfully.

As you prepare for the cross-examination of police witnesses, in any particular case, it is necessary to carefully review what will be necessary to get the job done.

Some of the most useful tools are the ones you may never have thought about.

A. THE POLICE OFFICER’S OATH OF OFFICE 1) Municipal 2) Ontario Provincial Police 1. The oath or affirmation of office to be taken by a member of the board shall be in one of the following forms: I solemnly swear (affirm) that I will be loyal to Her Majesty the Queen and to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, discharge my duties as a member of the (insert name of municipality) Police Services Board faithfully, impartially and according to the Police Services Act, any other Act, and any regulation, rule or by-law.

So help me God. (Omit this line in an affirmation.) or I solemnly swear (affirm) that I will be loyal to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, discharge my duties as a member of the (insert name of municipality) Police Services Board faithfully, impartially and according to the Police Services Act, any other Act, and any regulation, rule or bylaw.

So help me God. (Omit this line in an affirmation.)7

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Police Services Act, O. Reg. 499/95, s. 1[emphasis added].

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2. The oath or affirmation of office to be taken by a police officer, special constable or First Nations Constable shall be in one of the following forms: I solemnly swear (affirm) that I will be loyal to Her Majesty the Queen and to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office) faithfully, impartially and according to law.

So help me God. (Omit this line in an affirmation.) or I solemnly swear (affirm) that I will be loyal to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office) faithfully, impartially and according to law.

So help me God. (Omit this line in an affirmation.)8 B. THE POLICE SERVICES ACT STATEMENT OF PRINCIPLE Section 1. Police services shall be provided throughout Ontario in accordance with the following principles: 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.9 C. THE POLICE SERVICES ACT MANDATORY POLICIES Police Notes: The Statutory and Legal Framework A primary source for defence counsel in the preparation of his or her crossexamination of a police officer has always been the police officer’s duty book or memo book. This is typically a resource used to enter handwritten contemporaneous notes concerning the details of the matter under investigation.

For decades, this book had been considered to be a little more than an “aide memoire,” a resource to be used by police witnesses to refresh their memories during their testimony. This point of view has changed significantly in the last

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Police Services Act, O. Reg. 499/95, s. 2 Police Services Act, R.S.O. 1990, c. P.15, s. 1

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decade. These books may be used for that purpose as they have always been.

However, they now also serve a larger function in the criminal trial process.

One of the most effective ways to cross examine police witnesses begins with an understanding of the key issues surrounding the obligations and preparation related to notebook record making.

In planning the cross-examination counsel in respect of officer’s notes should consider carefully how to use a layered approach in their strategy.

Lack of/Improper Police Notes a) Statutory and Regulatory Obligations Imposed Upon Police Officers The starting point for preparing an effective cross-examination in this area, is to become intimately familiar with the statutory/regulatory obligations imposed on police officers operating in each province and territory, where counsel are practising.

These may generally be found in provincial or federal statutes and regulations such as the Ontario Police Services Act. The following provisions serve as examples of the type of legislative requirements that exist in each jurisdiction.

Statutory and Regulatory Obligations Imposed Upon Police Officers Section 80, of the Police Services Act, R.S.O. 1990, c. P.15, deems a police officer guilty of misconduct, if he or she commits an offence described in a prescribed code of conduct.

Section 30, of Ontario Regulation 268/10, pursuant to the Police Services Act, renders any conduct described in the code of conduct, set out in the Schedule, as constituting misconduct for the purposes of section 80.

The Code of Conduct, as per the said Schedule, includes at section 2(c) neglect of duty, for the neglect or omission of promptly and diligently performing a duty without lawful excuse. Section 2(c)(viii) of the Code of Conduct renders it neglect of duty if an officer – “omits to make any necessary entry in a record.”

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Section 42(1), of the Police Services Act, also sets out the duties of a police officer, and those include the following: Section 42(1) The duties of a police officer include, (g) performing the lawful duties that the chief of police assigns; b) Police Service Policies It is a serious matter not to comply with the mandatory job performance duties provided in the policies or operating procedures of individual police services, municipally or provincially. Codes of Conduct stipulate that officers may face disciplinary sanctions for failure to comply with proper notemaking practices.

Virtually every police service has distinct mandatory policies for notemaking and some include detailed lists of the content requirements for these notes.

These regulations and policies are key building blocks in the preparation of cross-examinations of police witnesses on the content of their notebooks. c) The Legal Significance of Note-Taking Over the past decade trial judges have begun to adopt a more dynamic approach to the way they view police notemaking. This ushered in a seachange in criminal trials in Courts across Canada, and culminated with seminal decisions on this subject in the Ontario Court of Appeal and the Supreme Court of Canada. (Schaeffer v. Wood, 2011 ONCA 716; Wood v.

Schaeffer, 2013 SCC 71) This has not been merely an evolution. In some respects it amounts to a revolution in defining the significance of notemaking as well as the consequence of failure to adhere to these mandatory duties. Proper note taking is now linked to the constitutional requirement under s.7, of the Charter of Rights relating to full disclosure of the Crown’s case.

In the post-Stinchcombe era, an officers’ notes are no longer simply an aide memoire for the officer.

“While an officer’s notes cannot be expected to record every minute detail, they must contain a complete and accurate 8

record of the significant events in the investigation so as to enable the Crown to fulfill its constitutional obligation to make full disclose. Nor was it satisfactory that the officer in effect provided disclosure of the case in court by fleshing out his notes on the witness stand. Such a practice runs completely contrary to the principles of fundamental justice enshrined in section 7 of the Charter.”10 “[W]e are well past the days when an officer can make only the barest notes and then attend court some seven months after the events and recite from memory his evidence. I take the view that the police officer should put in his notes all notations which have some relevance to the guilt or innocence of the defendant. This is not a situation when there are obscure issues which the officer would not have been readily aware of at the time of the investigation. All of the Crown evidence (save the taking of the breath tests) which would impact on the innocence or guilt of the defendant comes from the observations of the officer. If the officer gives evidence, which seeks to add to the case against the defendant, and such facts are not in the officer’s contemporaneous notes, then I do not feel that I can place any weight on such evidence.”11 There is a recognition and wide acceptance by the courts that good police practice requires officers to keep complete and accurate notes of important events that unfold over the course of a criminal investigation. “Effective and informative Crown first party disclosure requires nothing less.” Given the reality of memories fading with time, an officer needs reliable and complete notes to refresh his or her recollection of the relevant details of material events when he has to eventually testify as to those events.12 An officer’s credibility and reliability will be seriously affected and compromised by inadequate note-taking. “It is no longer acceptable for a police officer to make cryptic or incomplete notes concerning their interaction with an accused person, especially in light of the disclosure obligations created by R. v. Stinchcombe.”13

R. v. Karunakaran, [2008] O.J. No. 3468 at pp. 4 – 5, cited also in R. v. Patel, [2010] O.J. No. 981 at p. 3.

R. v. Tait, [2012] O.J. No. 524 at p. 3.

12 R. v. Sundberg, [2010] B.C.J. No. 1543 at p. 12.

13 R. v. Puleio, 2011 ONCJ 260 at p. 12.

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In Sundberg, the Court agreed with the assessment made by Justice Bruce in R. v.

McConnell, with respect to an officer’s claimed recollection of an accused’s alleged slurred speech that was not recorded in her notes, but was recorded in the officer’s subsequent Report to Crown Counsel: “...Cst. Gallop made no note of slurred speech until her report to Crown which was completed two months after the accident. She also included no details in regard to the slur; ie. whether it was slight or significant and whether it was constant or intermittent.

Nor did Cst. Gallop note where and when she detected slurred speech.

Where such important details are absent from contemporaneous records of the events, and not recorded at all until some two months after the events, their reliability is suspect.”14 This would be even moreso the case, where there is no written record whatsoever made by the officer of an alleged observation or indicia of impairment which is only brought forward for the first time in testimony at trial.

Evidence which tends towards exaggeration, selective observation, and defensive self-justification by an officer (such as downplaying the significance of lapses in good police practice), will invariably affect the Court’s assessment of the officer’s evidence, and the caution with which such testimony is to be assessed.15 The Ontario Court of Appeal addressed the nature of the obligation upon police officers with respect to note-making, in Schaeffer v. Wood. The following principles aptly govern and underlie the nature of this obligation: 1.

The duty to create independent and contemporaneous notes of events that transpire during an officer’s ordinary duties is fundamental to the professional role of a police officer.

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Note-taking is “an integral part of a successful investigation and prosecution of an accused.” “The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator.”16

R. v. Sundberg, [2010] B.C.J. No. 1543 at p. 11, citing from R. v. McConnell, 2008 BCSC 505.

R. v. Sundberg, [2010] B.C.J. No. 1543 at p. 16.

16 Schaeffer v. Wood, 2011 ONCA 716 at para. 67.

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3.

Police officers are under a professional obligation to take “concise, comprehensive particulars of each occurrence” during an officer’s tour of duty.17

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Police officers are trained that their “notes must contain your independent recollections providing an accurate and complete account of police observations and activities” and that “entries are to be made during or as close to the investigation as possible.”18

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Reliable, independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice.

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Police officers’ notes provide the basis for laying charges and they provide Crown Attorneys with a record upon which to base decisions regarding the prosecution of the case.

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In the post-Stinchcombe era of mandatory Crown disclosure, police notes provide the accused and his counsel with vital information to inform decisions as to how to plead and how to conduct the defence.

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The police officer’s notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to the reliability and integrity of the officer’s evidence, that the notes used record the officer’s own independent recollection.

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Note-taking is a core element of a police officer’s public duty.

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The very purpose of a police officer’s notes is to record the officer’s independent and contemporaneous record of the incident.19

Upon appeal to the Supreme Court of Canada, the Court echoed the principles as set out by the Ontario Court of Appeal in arriving at a similar conclusion. The Court also concluded that police officers have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.

An officer’s duty to prepare notes, is at a minimum implicit in the officer’s duty to

Wood v. Schaeffer, 2013 SCC 71 at para 68.; also confirmed in Ontario Provincial Police Orders, June 2009 Revision.

18 Ontario Police College, Basic Constable Training Program (Student Workbook - Evidence) 2008, at pp. 2, 8.

19 Schaeffer v. Wood, 2011 ONCA 716 at pp. 12 - 13.

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assist in the laying of charges and in prosecutions, which duty is expressly set out in section 42(1)(e), of the Police Services Act.20 As the Supreme Court stated, “none of this, of course, comes as news to police officers.” The Court recognized, that O.P.P. policy confirms the duty to make notes, by requiring officers to record “concise, comprehensive particulars of each occurrence” during their tour of duty, and to “make all original investigative notes...during an investigation or as soon thereafter.”21 The Court also recognized that police manuals have long emphasized the importance of “accurate, detailed, and comprehensive notes.”22 d) Relationship to Reliability, Credibility and Weight It is not the absence of every trivial detail which will attract concern on the part of trial judges when considering an officer’s note-taking. However, the failure to note important details that touch upon the essential elements of the charge before the Court will be viewed as relevant in the assessment of the police officer’s credibility and reliability.

As noted previously, breaches of statutory and policy requirements relating to note taking, will now come under increasing scrutiny by trial Courts. This will have a direct impact on findings which will be made concerning credibility and reliability, two key components used in considering the weight to be attributed to the evidence.23 An early trial decision emphasizing the disclosure requirements in this context is R. v. Zack, wherein the judge observed: “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 Wood v. Schaeffer, 2013 SCC 71 at para 67.

Wood v. Schaeffer, 2013 SCC 71 at para 68.

22 Wood v. Schaeffer, 2013 SCC 71 at para 68.

23 R. v. Fisher, [2005] O.J. No. 1899.

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conclusions 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 respectfully agree with the this view of the diminished reliability of this kind of evidence.”24 The judicial fact finding role will no longer be “left to the whim of memory.”25 Courts will no longer be prepared to find it acceptable for a police officer to say “that I did not note these things because I know I would remember them. It bears on the credibility of the officer as well as the reliability of his evidence.26 Moreover these omissions in the disclosure of material evidence in the prosecution of the Crown case would breach the fundamental principle that “the Defence is entitled to know beforehand what case it has to meet and a trier of fact will pay little, if any, attention to evidence which is produced in that fashion.”27 Some of the above noted cases also confirm that this approach by judges has not been restricted only to material omissions from notes and reports. It has been expanded to include exaggerated claims made about important observations in the course of investigations inconsistent with original note taking. (This is an excerpt from the soon to be released, Cross-Examination: The Art of the Advocate, Fourth Edition, Roger Salhany, Michael D. Edelson, W. Vincent Clifford)

R. v. Zack [1999] O.J. No. 5754 at para. 21, see also R. v. Makhota [2004] O.J. No. 5315, R. v. Lozanovski [2005] O.J. No. 1322, R. v. Towlson [2011] O.J. No. 6145.

25 R. v. Lozanovski [2005] O.J. No. 1322 at p. 3.

26 R. v. Khan [2006] O.J. No. 2717 at p. 5.

27 R. v. Tsasov [2008] O.J. No. 1510 at p. 11.

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D. EXAMPLES OF PSA POLICIES OF OTTAWA POLICE SERVICE 1) Notemaking

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2) Impaired driving

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The included policies are but two examples. Police Services have a broad spectrum of mandatory policies which must be complied with by all officers. These cover virtually all areas of policing including actual conduct of police investigations.

Note the O.P.P. has a large volume of “SOPS� Standard Operating Procedures, defining the mandatory policies and procedures required of its officers (reference is made to these in Schaeffer). What follows is a brief excerpt of the cross-examination of a police officer concerning adherence to O.P.P. policies: “Q. So when you started making notes in reference to this event, did you feel confident that you were fully apprised of the way to make proper notes in this type of investigation?

A. Yes, sir, I've conducted other impaired investigations, over 80 investigations, and my notes are done in a similar fashion.

Q. So you were content that you understood your obligations and duties in terms of notemaking as an O.P.P. officer?

A. That's correct.

Q. And you're aware there are O.P.P. orders concerning note-making?

A. Yes, sir.

Q. Have you read them?

A. I don't believe I've read them from the O.P.P. orders...

A. ...book.

Q. Have you read the revision order in 2009 about note-making?

A. No, I definitely don't believe I have.

Q. They are called "orders" for a reason, aren't they?

A. Yes, sir.

Q. And what is the reason?

A. Because our higher-ups expect you to follow those recommendations and orders.

Q. Directions?

A. Yes. 25

Q. Correct. That's why we have orders.

A. Absolutely.

Q. Exactly. But you didn't know what the most recent orders were at the time of this event in terms of note-making?

A. No, sir, like I said, I've never read them.

Q. Isn't it part of your duties to stay current with respect to the directions and orders given to you by your own police service?

A. Absolutely, and with the amount of orders that are revised and come out, I wouldn't be on the road that much if I sat there and read them all the time, unfortunately.

Q. Well, your police service must know how much time it might take an officer to read orders, right?

A. Absolutely.

Q. And, yet, they still issue them, right?

A. They do, because they are important.

Q. And they expect you to read them...

A. Yes. Q. ...and comply with them.

A. Yes, sir.

Q. They're there for a reason, right?

A. Absolutely.

Q. Because I'm going to suggest to you the reason they're there is twofold. One is to make sure that officers are compliant with the most recent binding decisions of the courts, correct?

A. Yes, sir.

Q. The other is to ensure best practices with respect to note-making, also to comply with the expectations of police services as well as the courts, correct?

A. Yes, sir.

Q. Now, one of the key reasons I'm going to suggest to you for comprehensive, accurate and truthful note-making is that you know you're going to give your notes and your other reports, et cetera, to Crown counsel ultimately if the matter is going forward with a prosecution, correct?

A. Yes. Q. And you understand the process, you've been in it now five or six years, correct?

A. That's correct.

Q. And part of that process is that the Crown receives the information, and they have to apply a test to determine whether a prosecution will go forward, correct?

A. Yes. Q. And the test is two parts, are you aware 26

A. Probability of a conviction perhaps would be in there.

Q. Reasonable prospect of conviction. Are you aware of the second part of the test?

A. Not off the top of my head, no.

Q. But you're aware that in order to make certain charging decisions, for example, if they're consulted, or to proceed with a case, they have to have the fullest possible disclosure of what happened, correct?

A. Yes.” E. DISCLOSURE You must be fully aware of all of the disclosure materials available, in virtually every criminal investigation, created by provincial and municipal police officers.

1) 911 CALL LOGS AND RECORDINGS The content of these records may include not only the call record, but also crucial times. Collaterally there may also be excellent tools to cross examine the caller who may be the complainant in a domestic, for example. The demeanor of the complainant and content of the complaint as well as any background information caught on the recording can be very helpful.

2) POLICE IN CAR RADIO LOGS (THE “CALL PATH”) There are the physical printouts of the radio call history between dispatch and the police units involved in the case. In some police services there may be radio calls between police vehicles as well.

Not only is it crucial to obtain these printouts, you must learn to identify a) the individual cadre (badge) numbers of each officer on the call; b) the individual police vehicle identification numbers; c) the calling codes of the police service and what they each signify; d) what the officers are saying on the calls; e) and importantly, the relevant times when events are unfolding on the call.

3) MDT RECORDS (“MOBILE DATA TERMINAL” RECORDS) Many of you may not have even heard about these very important records before. There are several reasons for this. First, the police rarely disclose these in 27

the course of fulfilling their Stinchcombe obligations. Secondly, they are often misrepresented to be the Radio Call Path Record. Often Crowns have been told they are the same as radio calls, or, worse still, that they do not exist. These two records are separate and distinct police communication tools. MDT records are often very detailed entries typed into the officer’s mobile data terminal or police computer in the cruiser.

More importantly, the officers can send the equivalent of text messages car to car and terminal to terminal using MDT’s. There can be invaluable information about your cases buried in their private texts.

Do not be embarrassed if you were unaware of these. I recently had a trial where the MDT was a central issue.

First, following a comprehensive disclosure request including the MDT’s, I was told by the Crown’s office they did not exist.

Second, when I followed up with a another specific request for the MDT’s asserting that they most certainly did exist, I was advised by the Crown’s office that even if they did they were not “relevant.”

Thirdly, I sent another request demonstrating why and how I knew they did exist and why they were relevant. This information came to my attention a number of years ago when I was defending several police officers and my clients indicated that the MDT’s would be very helpful in their defence. We received them, with significant redactions which were subsequently removed.

In a recent case I was able to finally obtain the MDT’s, albeit significantly redacted with large black blocks of information eliminated.

These redactions were subsequently removed during a court application and with Crown consent. What was revealed was a real eye opener. Behind the veil of edits, were car to car texts between the officers, including the arresting officer, demonstrating that these officers had carried out not only surveillance on my client and his location throughout the evening, but had run his plate number four separate occasions over one and one half hours all prior to the ultimate traffic stop. Moreover, the texts noted when and where the client leased the vehicle just two days before.

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Because this was a uniquely identifiable Jaguar sports car, there were only two in the city of Ottawa at the time, it became clear that my client was being targeted.

Why? Because he had signed as a surety for an acquaintance of his so he could be out of jail when his first child was born. This was in relation to a major drug project. That release enraged the police. In addition, they began a harassment campaign against my client’s restaurant and his clientele. This permitted me to make closing arguments as to the bad faith of the officers in the conduct of their investigations. Moreover, while the officer claimed he was conducting roadside screening tests with my client, there were contemporaneous MDT transmissions being made from his cruiser. This could not be adequately explained.

These MDT records were a powerful weapon to attack the bona fides and credibility of the officers.

The trial judge in that case had been sitting for over 20 years in Ottawa. She was also an experienced former Crown Attorney. She had never before seen an MDT record introduced in a trial during either career.

Unsurprisingly, during a recent Judicial Pre-Trial presided over by the same judge on another case where we were asserting our right to the disclosure of MDT records, the Crown again asserted they did not exist. When told by the judge, they did, the Crown asserted they could not be of any relevance. The judge made it very clear to the Crown that they would likely be of significant relevance as she had seen them for the first time on my previous trial with her. The judge told the Crown in no uncertain terms that she would make a disclosure order if an application was brought before her.

4) OFFICERS’ CELLPHONES In some police services officers have cell phones provided by their service for their use while on the job. Virtually all officers today also carry their private cell phones with them while on duty. Counsel may wish to pursue, during crossexamination, a line of questioning related to the use of these devices for calls or text messages related to the investigation.

For example, if roadside access to legal counsel should arise in the circumstance of the case it is also useful to know if the arresting or detaining officer could have facilitated your client’s section 10(b) implementation rights using one of these devices.

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5) POLICE OFFICERS’ WRITTEN NOTES AND RECORDS a)

THE INVESTIGATION STAGE i. DASH PAD NOTES These are typically note pads that literally stick onto the dash of the police cruiser. Officers will resort to these to quickly jot notes as to times and activities to make reference to later to assist the officer in formulating their duty book notes. There are a number of aspects to these notes which can provide useful material for cross-examination.  

The times recorded may fail to coincide with other more reliable records such as the call path or the MDT. These notes may provide a record which can be used to contradict the officer as to statements recorded, events described or actions taken which are later recorded differently elsewhere.

ii. DUTY BOOK NOTES These are the most crucial records which an officer will make in the course of an investigation. The content of these notes, as seen above, is mandated by the police policies and importantly by the guidance provided in Schaeffer v. Wood.

Accordingly, counsel must pay close attention not only to what is recorded in the duty book notes but, more importantly what is omitted. The latter opens the door to a three-pronged attack in crossexamination. Firstly, the officer can be questioned about noncompliance with mandatory police policies concerning the particulars required to be present. Once established the officer can be reminded that this constitutes a potential breach of the Code of Offences under the Police Services Act. Finally, given officers still cling to the notion that their notes are only made as a personal “aide memoire,” if important details are missing counsel can pounce on any brand new additions of any significance.

If information testified to is significant and not in the notes it begs the question how the complete absence of such detail could even be an 30

“aide memoire,” thus kneecapping the officer’s purported rationale for the inclusion of trivial details while omitted key ones.

Look for other opportunities for fruitful cross-examination as you scour through the duty book line by line. I have included a number of other successful techniques for cross-examining officers on their duty book notes in a later section of this paper. iii. POLICE FORMS A number of police detachments, sometimes with the direct approval of the local Crown Attorney’s Office, have created offence specific forms to assist officers in their notemaking. Ensure you are familiar with these and obtain them in disclosure. One O.P.P. detachment in the East Region uses a document which has headings and prompts for the officer to focus his/her notemaking: The Drinking and Driving Handbook. iv. AD HOC POLICE FORMS You may also encounter an industrious police officer who has created his/her own forms to assist in notemaking. Such was the case in one of the trials for which I have provided you with my entire crossexamination of the investigator. Many of these have not been authorized by the police service. Moreover, due to the mandatory duty book policies they cannot be utilized as a substitute for formal notemaking. (see R. v. Puccini case cross-examination) v. INVESTIGATIVE ACTION REPORTS/ELECTRONIC RECORD-KEEPING Because chiefs of police can dictate mandatory notemaking policies for their respective police services there is not a uniform series of police orders as to the form and content of officers’ notes.

The notes falling under this heading are the reports the officers prepare on their computer during an investigation. These records may be made on the MDT in the cruiser or back at the detachment on a laptop or desktop computer.

As will be discussed later, counsel must be alert to issues surrounding the timing, content and integrity of these electronic 31

records. These considerations can, of themselves can break open the case for the defence. Some officers believe that if they make adequate computer notes they can avoid the mandatory duty book notemaking policies. This can prove fatal for them in crossexamination.

Finally, and most importantly, carefully check the IAR disclosed to ensure that the document has been “locked down” or “locked out.”

This process should also be dated. This prevents officers from altering their reports after the fact. The proper practice is that the officer should “lock down” the individual electronic reports, date that action and prepare follow up separate electronic reports dated and locked down individually. vi. CROWN SYNOPSIS/PROSECUTION SUMMARY This document is typically made so that a screening Crown can quickly get up to speed as to the nature of the police investigation with respect to any particular case file. Additionally, they may be used by the Crown to determine whether the accused should proceed to a show cause hearing. Thus lack of accuracy, candour or the presence of exaggerated facts may be very useful in crossexamining the officer who made these documents, given that these reports often form the backbone of RPC analysis undertaken by Crown counsel. vii. BAIL REPORT The extent to which an officer includes incorrect, exaggerated or false information which will be used by Crown counsel to determine whether your client is sent to bail court, can be used as an effective weapon in cross-examination, even at the ultimate trial. viii. WITNESS WILL STATES These represent the officer’s synopsis of what the witness may have stated to the police in an otherwise lengthy and detailed statement (often audio and videotaped). The “spin” that an officer may place on the content of these summaries can be very telling and demonstrate partiality and bias.

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ix. INTERNAL POLICE VIDEOTAPES Some police services are now undertaking trials using body cameras.

As counsel will discover these devices can be both helpful or misleading relating to what they do show and what is missing concerning any particular incident.

More traditional resources such as audio video recordings inside police vehicles, at police sally ports, at the sergeant’s booking desk and in the cell block and breath testing rooms are of enormous value to the cross-examiner. (see the Bulat cross-examination for an example of the devastating effect on the officer’s evidence through pointed questions comparing his evidence with the video record.) x. EXTERNAL SOURCES Counsel should pursue resources beyond the now standard Google maps and street view shots they seek to use in cross-examination of officers. Incidentally, there is a caveat to be observed even using these resources; beware of such things as seasonal differences and construction at the time of your incident not shown on the roadway when Google shot the scene.

CCTV cameras are now far more prevalent than they once were.

These are also useful tools for cross-examination of officers. You may gain access to these at a number of business locations proximate to your scene, from convenience stores, to banks, and condo buildings.

Have your investigators search for these videos. xi. SOCIAL MEDIA Officers may have both a public official as well as a private social media presence on the internet. Depending on your client’s resources you may want to scrape the internet for information relating to the incident or the character of the officer generally. In some cases it may be necessary to retain the services of an Open Source expert to do a comprehensive search of Facebook, Twitter, Instagram, Pinterest and LinkedIn. There may also be cellphone 33

video camera records of some incidents that can be uncovered as well which are helpful to your cause.

Counsel intending to introduce such evidence at trial should ensure compliance with the Canada Evidence Act rules concerning the introduction of “electronic documents,” sections 31.1-31.8 (see also R. v. Calvert, 2011 ONCA 379, [2011 O.J. No. 3086]).

It is also not unheard of to find instances where police officers are connecting with key witnesses on social media and talking about the case itself. In our practice we have seen officers trying to establish a personal connection or relationship with a witness and, in several instances, actually undertaking a romantic relationship with the witness/complainant while the case is ongoing. xii. TRIAL TRANSCRIPTS AND DECISIONS You may be preparing for the cross-examination of a police officer on a Charter Application. The focus of the application may be a section 8 or 10(b) issue. Ask colleagues about the particular officer who you will be questioning. See if the same officer has been the subject of previous cross-examinations on the same issues. Additionally, see if the officer was criticized by a previous trial judge in reference to similar Charter infractions. This may be very useful in crossexamining the officer in your own trial and used to demonstrate that the officer is a repeat “offender” who has learned nothing from the previous decisions. Order all of the relevant transcripts. These may assist, in tipping the balance towards the bad faith end of the police conduct spectrum.

Significantly, see if you can locate transcripts where the officer was criticized by a trial judge or disciplined under the Police Services Act for non-existent, inadequate, or improper notemaking practices. xiii. POST INVESTIGATIVE MATERIALS Counsel should also be cognizant of several other useful sources in formulating their cross-examination plan.

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Officers’ notes are required to be reviewed by their supervising sergeant on patrol. They may be the subject of critiques as to form and proper content. The sergeant may initial the notes to signify that a review has taken place.

Counsel should also seek the disclosure of emails or other internal communication between the officer and superiors which critique the notemaking or advise the officer to create supplementary reports to include further investigative steps or details.

Sometimes the Crown screening the file or the trial Crown will write letters to or emails to the officer or his/her superiors seeking additional information or details concerning the case. Typically, they may send over the defence’s written disclosure requests for follow up action. The officer’s failure to act on such instructions may provide helpful material for cross-examination.

Counsel should also seek any emails wherein the Crown forwards Charter Notices filed as well as the detailed materials describing the breaches by the officer. There may be efforts made to have the officer explain or rebut these claims.

Also, always be alert to ensure you question the officer about any “preparation” by the officer for trial. This may include discussions with the Crown or other officers concerning Charter Applications. xiv. MCNEIL NOTICES AND ACCOMPANYING MATERIALS In order to fully prepare cross-examinations of officers it is necessary to know if they have disciplinary or criminal records.

There is some confusion concerning discharges. Frequently when officers are still in the service, notwithstanding pleading guilty to a criminal offence, they are given a discharge.

Counsel should be prepared for Crown objections if they try to crossexamine an officer who has been given either a conditional or absolute discharge under section 12 of the Canada Evidence Act. This is impermissible. (R. v. Conway (1985) 17 CCC (3d) 48 (OCA); R. v.

Danson (1982) 66 CCC (3d) 369 (OCA); R. v. Sarig (2004) 182 CCC (3d) 530 (MBCA)) 35

However, cross-examining the officer on a police disciplinary finding under the Code of Conduct of the Police Services Act, which, by definition, will include an entry of the officer has pleaded guilty is entirely permissible.

As previously alluded to, the credibility and reliability of the evidence of police witnesses may frequently be called into question in criminal trials, during cross-examination.

Defence counsel, Crowns and, most importantly, judges talk about the testimony of police officers. Once a specific police officer is viewed as being less than credible, or unreliable as a witness, this becomes broadly known amongst these participants in the criminal trial courts. (see R. v. Ghorvei [1999] O.J. No. 324, 138 CCC (3d) 340 (C.A.)) The Supreme Court in R. v. McNeil added another useful component for counsel who are seeking to call into question the evidence of police witnesses.

Whenever an officer’s misconduct is related to the investigation itself or the findings of misconduct could have a “realistic bearing on the credibility or reliability of the officer’s evidence” it must be disclosed to the defence.

It should be noted however, that officers completing McNeil disclosure forms are often attempting to limit the information they provide to counsel. These forms may only disclose that the officer was found to have breached specific sections of the Code of Offences, pursuant to the Police Services Act. Counsel must drill deeper to see if there are further materials available in order to determine the usefulness of this material in the trial they are conducting.

Areas which are of particular interest to defence counsel include findings that the officer’s conduct included: 1.

2.

Deceitful activity; Failure to make proper records (such as duty book notes and investigative action reports);

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3.

Breach of trust such as using the police RMS, CPIC or other police databases for a deceitful, improper or personal reason.

Police disciplinary hearings are public, on the record and therefore transcripts may be obtained of the evidence and rulings at these proceedings.

Counsel should also scour traditional media sources for articles reporting an officer’s misconduct. This will provide helpful leads as to where to look for further more detailed information.

If an officer, in his/her McNeil Notice minimizes or misrepresents the nature or extent of the misconduct and associated discipline, counsel will be able to exploit this in cross-examination. Suggestions may be made that the officer is now being deceitful or misleading with counsel and the Court and negative findings should be made concerning the officer’s credibility and reliability.

As an adjunct to these materials counsel may want to have an expert conduct an “open source” search of all news and online sources including social media, for information concerning the officer’s reputation and conduct.

See R. v. Taylor, a case decided in June of this year, where inadequate or misleading McNeil disclosure resulted in findings by the trial judge concerning the officer’s credibility/reliability as a witness.28 OTHER SOURCES 1. Police College Training (see Schaeffer v. Wood, counsel should explore the extent of training concerning proper notemaking) 2. Coach Officer Training In virtually every police service in Canada officers attend a police college. This is not the end of their training regime. Typically officers are then teamed with a coach Jayme Poisson & Wendy Gillis, Court case illustrates danger of letting cops write their own misconduct reports, online: The Toronto Star <http://www.thestar.com/news/crime/2015/06/29/court-case-illustrates-danger-ofletting-cops-write-their-own-misconduct-reports.html> 28

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officer who provides further guidance and training in a real life environment on the street. It is useful to ask questions about such training and whether the newly minted constable was provided further instruction concerning notemaking, had his/her notebooks reviewed and critiqued for issues of a negative nature.

3. Annual Performance Reviews All police services provide performance reviews of each officer. These are completed by a platoon sergeant or other senior officers. This may provide a fruitful avenue for cross-examination if counsel have solid intelligence concerning the record of the particular officer. Needless to say police services will rarely disclosure such information voluntarily and a Third Party Record Application may be required.

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THE CROSS-EXAMINATION BLUEPRINT A. INTRODUCTION Now that you have assembled all of the tools in your cross-examination tool box, an even larger question looms: Do you have a plan for using them?

Moreover, are you confident that you have sufficiently developed your skills and crossexamination techniques to successfully cross-examine these witnesses?

I have observed defence counsel engaged in cross-examinations of police witnesses who are achieving nothing more than re-enforcing the Crown’s case. Judges have told me that this is happening with some frequency in their courts on a daily basis.

Successful cross-examination of police witnesses is an exercise in creativity, planning, and structuring your approach to fit the circumstances of the particular case. At the epicenter of effective cross-examination is the elicitation of your client’s narrative. Truly great crossexamination is the successful telling of your client’s side of the story, i.e. creating an “alternative reality.”

If you are struggling or at a loss as to how to formulate your plan, begin with the scheme developed for arguing the case at the end and then work backwards.

1. A starting point for a successful cross-examination plan of police witnesses is the “IRAC” framework.

2. Issue Rule (legal principle or code provision) Analysis Conclusion 3. Always remain acutely aware that there is a direct thread that runs through a criminal case connecting the key elements.

4. Keep in mind this simple formula for ensuring that your cross-examination stays connected to your plan: DISCLOSURE + CROSS-EXAMINATION + SUBMISSIONS = DECISION(not guilty) 5. This will assist you to focus on what is truly important as you plan your cross-examination.

B. THE SIMPLE PATH I am advised that over 25% of all criminal cases heard before the Ontario Court of Justice are driving offences and domestic offences. Many experienced judges have heard hundreds and, perhaps even thousands of these cases.

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When I am preparing my police witness cross-examinations in such cases, I always visualize the judge in Chambers, looking at his/her docket before coming down to court and saying “wonderful another impaired and another domestic trial.”

Always keep uppermost in your mind that you have an audience of one in the courtroom, the judge. It is not your client.

Remember, just because you can cross-examine police officers on absolutely every possible Charter breach you may believe took place, rarely should you do so. It will be counterproductive. What you must do is think, plan and focus on the specific issue at hand, whether it is creating reasonable doubt or establishing Charter breaches and evidence exclusions based on the balance of probabilities.

The rest is white noise that obscures your simple path to success.

Capture the attention of the trial judge; once you have achieved this you then capture the judge’s interest and focus, in order to have his/her mind fully concentrated on the issues and evidence you are highlighting.

Whenever possible, your cross-examination of police officers should elicit evidence of the “injustice” suffered by your client. You should illustrate that the officers’ conduct in the case quite simply should be viewed along a sliding scale or spectrum of police behaviour ranging from negligence, carelessness, and unfairness to deliberately deceptive and egregious conduct. This will be a successful strategy whether you are advancing arguments about reasonable doubt or proof on the balance of probabilities in Charter litigation.

C. MOVING POLICE WITNESSES “OFF SCRIPT” Police evidence is the most highly “scripted” testimony which counsel see in criminal trials on a day-to-day basis. The script is primarily comprised of the duty book notes. Depending on the charge, it may also include a combination of the other records alluded to earlier. The officer will return to these documents time and again seeking a safe haven from your questions or simply reviewing them to give him/her time to think. You should question the officer explicitly concerning these patterns.

The Crown will commence examination-in-chief with the usual incantation concerning the process of notemaking in order to qualify the notes so that the officer will receive the Court’s permission to refresh his/her memory from those sources.

40

Crown counsel will also ask the officer if he/she has an “independent recollection” of the events. This raises some interesting issues. If the officer has an independent recollection then there is really no need to refresh memory from the notes. Counsel may seek to restrict such access. Where officers utter the phrase “I independently remember the ‘XYZ’ but I did not record them in my notes,” this is music to the ears of defence counsel. Vigorously crossexamine on these omissions and suggest that these new materials are invented, ex post facto to save the Crown case in court.

Cross-examination of police witnesses is most successful when counsel can adroitly push the officer in a direction that is completely off script. In the best case scenario you may strike a psychological blow or series of blows against the witness such that he or she is left floundering for answers.

One method which is very effective is to resort to a non-linear cross-examination. That is, do not go through an exercise of chronologically following the order of events recorded in the officer’s notes. Doing this will make the officer comfortable and provide the Crown with a warm and fuzzy feeling as you re-inforce the examination in chief. Officers are often experienced witnesses. They will be anticipating your questions if you proceed sequentially.

If you are moving around the notes from the end to the middle to the front to the middle etc. the officer will be dislodged from his/her comfort zone. Then in submissions you reassemble the points to be made into a persuasive whole – go “Uber” be disruptive!

By way of example, in the 1980’s I was retained by a prominent Ottawa dentist on an impaired/over 80 case. He had made a right turn so as to merge with the traffic on a very busy street. As he did so he glanced to his left to check traffic not realizing that the driver in front of him had applied the brakes bringing his vehicle to a stop. My client struck the rear of that vehicle causing little or no damage.

As the drivers attempted to exchange information a police car pulled up to the scene. There was an odour of alcohol on my client’s breath and this was conveyed to the police officers by the other driver. Remarkably the officer in charge demanded that my client conduct a tight u-turn and drive his vehicle across a busy intersection and park it in a vacant lot. This struck me as very odd given the nature of the investigation.

I asked what turned out to be my only question in the trial.

“Officer, are you a reasonable man?”

The officer, 6’5” and about 270 pounds sat silent in the witness box for one and a half minutes as we all started to watch the secondhand on the clock.

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The trial judge who began updating his diary when I rose to begin cross-examination was now fully engaged and in astonishment as the officer responded, a full minute and a half later: “That is a trick question, you are one of those tricky defence lawyers!”

I said please answer the question. Another minute ticked by. The Crown, who had never seen this officer in action, was gob-smacked.

Finally after much humming and hawing the officer hesitatingly said: “I guess so.”

The judge immediately bolted from the courtroom, laughter was heard emanating from the hallway. The judge then invited counsel into Chambers to discuss whether the Crown intended to continue the trial in light of this performance: how could any reasonable police officer ask a suspect in an impaired case to drive his car as he did?

That case represented my only win in 38 years with a single question in cross-examination.

This is a sample of a psychological blow being struck where you normally would anticipate only one answer to such a simple question, “yes sir.”

D. OTHER STRATEGIES AND TECHNIQUES I have included two complete transcripts of my cross-examinations of investigating officers in two separate trials highlighting these and other techniques which may be utilized to successfully win trials. I have also included the judgments.

When reviewing the trial judge’s decision in each case you will be able to clearly observe the close connection between the cross-examinations, closing submissions, and the results achieved (successful applications of the simple formula). This is because the answers elicited permitted me to structure closing arguments that were primarily restructured cross-examination.

The following comprises a non-exhaustive list of the creative ways you can move police witnesses off their own scripted testimony (for the Crown case) and permit you to rewrite the script. These methods create an atmosphere of tension and discomfort in the mind of the officer; his aide memoire itself may be under attack and he/she will be left attempting to answer questions never encountered before.

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In this way counsel create an “alternate reality,” that is, the one favourable to your client that you have carefully planned and are now executing. The reality that raises reasonable doubt, proof of Charter breaches, evidence supporting exclusionary arguments and, ultimately acquittals.

E. DISRUPTIVE QUESTIONING: THE PSYCHOLOGICAL BLOW During the first Clinton campaign his strategic guru, James Carville, got Clinton elected using a simple theme encapsulated in a single sentence: “It’s about the economy stupid.”

As you conceptualize, plan and execute your cross-examination of police witnesses, always remind yourself: “it is about reasonable doubt stupid.”

You do not have to prove that a police witness is lying in order to argue lack of credibility or reliability. Eliciting evidence in cross-examination that the officer is wrong or mistaken, careless or negligent, or acted intentionally in breaking the mandatory policy requirements of his police service, may be all you need to establish reasonable doubt and obtain the verdict you seek.

What follows are some specific areas of questioning as well as a sampling of particular questions which will assist you in executing a successful cross-examination of police officers. Many, on reflection, may appear to be simple. Some you may already have in your arsenal. As will be observed upon reading the two transcripts, the effect can be devastating.

First some general principles: 1. When developing the framework for your questions you should ensure that you have gathered as much background information about the officer, over and above the contents of the tool box.

2. When officers seek the court’s permission to refer to notes after the usual questioning as to their notes by Crown counsel I generally do not cross-examine at this point, I defer the opportunity until I begin my general cross-examination after the officer’s testimony in chief.

3. One thing I do however, is I tell the judge I have no objection to the officer “refreshing memory” from his/her notes or reports if required, so long as: a) The officer is not “reading” from these documents (i.e. their scripts),

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b) The officer advises the court and counsel which document is being used to refresh memory along with the page numbers so counsel can follow. c) I typically provide the judge with the documents so that he/she can follow along when I begin cross-examination.

4. My earliest questions will be directed at getting the officer “off script” as soon as possible. What follows are some specific questions, themes or areas of crossexamination which successfully achieve this goal. a) When did you last refresh your memory from your notes… from your reports? b) How many times did you read over your notes, your reports? (The greater the number, the more effectively counsel underlines the lack of organic memory and just how “scripted” the testimony just heard in chief is. Pursue this with follow-up questions to determine if this is truly “past memory refreshed” for which the Crown sought permission on behalf of the officer, or “past memory recorded.” c) Officers will, notwithstanding Schaeffer v. Wood continue to testify about crucial or important aspects of their investigation with comments such as “I have an independent recollection of…” Do not let this pass. d) Counsel must not let the officer off the hook, follow-up questions as needed: i.

When did the officer first have the independent recollection?

ii.

Was it a witness box epiphany?

iii.

Had the officer recalled it sometime prior to trial?

iv.

Was the officer familiar with his/her continuing duty to make disclosure to the Crown of any and all possibly relevant information?

v.

In either case, highlighting these elements of this new and previously undisclosed evidence will be effective. For example, 44

when you realized you now recalled a new and important fact did you advise the Crown as you are required to? vi.

I ask officers if they have received updates and training related to recent legal developments concerning important decisions of our Court of Appeal and the Supreme Court. This will include asking the officer if he/she has ever heard of a specific case by name and read it or received a summary of the important issues and directives set out in it. If the answer is yes pursue this understanding. If the answer is no, this is helpful for obvious reasons.

vii.

Ask officers if they are familiar with the latest mandatory policies of their police service, for example, notemaking.

viii.

Ask about police college training, and coach officer training concerning proper notemaking practices.

ix.

Confirm with the officer exactly what that training and those policies state.

x.

Confirm officers understand and follow the mandatory requirements of the policy and did so in your case. For example, when an officer is directly quoting what your client stated, polices require the words to be in quotation marks. If they are not, it is not a verbatim record.

xi.

Point out to the officer that he/she would never breach this training or such mandatory policies. Point out the Code of Conduct under the Police Services Act provides for disciplinary proceedings for failure to do so. Once the officer agrees with this premise, a demonstration of breaches of policies/police orders will be very telling.

xii.

Officers will be very unsettled by the prospect, now lingering on the back of their minds of discipline as you time and again demonstrate their failure to comply with police orders.

xiii.

You may ask if the officer is thoroughly familiar with the requirements of R. v. Stinchcombe. If he/she answers yes, 45

pursue that understanding. If the answer is no, it speaks for itself. This is particularly effective where there is late paper disclosure, or absence of it. xiv.

Next counsel should focus on the form and content of the notes made by having the officer confirm under oath that: 

  

The notes are accurate and have been reviewed for mistakes or false information and contain none. Have the officer confirm they are correct.

The notes are a complete record of the occurrence.

The notes are truthful (underlining that officers have a moral and legal duty to tell the truth) That the notes are prepared in a sequential and chronological fashion.

xv.

An excellent closing question in this area is: “so officer you can assure counsel, defence and Crown, as well as his/her Honour that we can rely on your duty book notes as a complete, truthful and accurate record of the events you investigated on this case?”

xvi.

Ask officers if the notes contain any late entries. These are required to be marked with an “LE” in the margin and typically best practice requires that the date and time of the late entry be marked.

xvii.

Address alterations and corrections made to the notebook entries. The proper protocol is to draw a single line through the mistaken portion with the officer initialing this. Officers frequently fail to do this. They often scribble over the top of the previous wording, especially when altering times. This is improper, and usually renders the original entry illegible.

xviii.

Virtually every police service in Ontario requires the officer to complete his/her notebook entries as well as electronic reports and IAR’s prior to the end of his or her shift. It is generally necessary to obtain permission from a superior officer before departing from this mandated policy or procedure.

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xix.

Notebooks and other documents are typically then scanned into the police RMS (Records Management System) and prepared for disclosure. No further changes to the original entries should be possible or permissible after this is completed. Rather the officer should make new and separate duty book entries or IAR’s to memorialize any additional or later activity. Counsel must also be aware of another practice which in inappropriate and contrary to police procedures. This relates to the continuation of entries on an original IAR or electronic record. Their printout copies of these records must be scrutinized carefully to ensure that they are marked as having been “locked out” or “locked down” on a specific date.

xx.

Counsel must make sure to request further disclosure of follow-up notebook and IAR entries subsequent to the disclosure scans done prior to the end of shift.

xxi.

Any divergence from this practice will provide a very fruitful area for cross-examination as to the internal integrity of this document. Officers should be preparing follow-up IAR’s as indicated, and not be altering the original.

xxii.

If this is being done it will be virtually impossible to determine exactly what has been added to the original IAR without a digital examination of the meta-data, something that will rarely take place.

xxiii.

Once you have successfully pinned down the content, timing and integrity of the officer’s notes, in all relevant respects, any effort by the witness to depart from them in any important way will be pounced upon in cross-examination, often with devastating effect.

xxiv.

Another key element counsel must carefully chart out in preparing cross-examinations on officers notes and reports are omissions from one document included in another and vice versa and contradictions and inconsistencies along a matrix including all of the officers written documentation when compared to the viva voce evidence 47

xxv.

This may be highlighted effectively by providing the trial judge with “working” copies of the notes and reports with simple colour highlighting of the relevant areas so the judge can be exposed to the full impact of the content and number of such differences, additions or omissions. This is particularly effective when there are numerous contradictions and inconsistencies.

xxvi.

Counsel must also chart out the substance and number of exaggerations and embellishments by the officer as he/she moves from dash pad to duty book notebook to IAR to will says etc.

xxvii.

Officers will, on reflection, when preparing their electronic records while reviewing their duty book notes to do so, realize that their initial notes on such things as RPG and signs of impairment seem weak.

xxviii.

This may result in the officer seeking to add “horsepower” to their observations by impermissibly exaggerating or embellishing their grounds on subsequent reports. This opens a number of different doors to effectively cross-examine (for the purpose of this discussion “embellishment” is considered to be a “fictitious addition” while “exaggeration” is viewed as “an alteration or enlarging beyond normal proportions”).

Examples:    

xxix.

“unsteady on his feet” becomes “falling down” or very unsteady” “odour of an alcoholic beverage” becomes “a very strong odour” or “an overwhelming odour” “slurred speech” becomes “very slurred speech” or “incoherent speech” “producing driver’s licence, insurance and ownership,” becomes “produced health card and fishing licence along with Costco card”

Counsel should also compare the notes and reports of each officer at the scene, with the same opportunity to observe, for possible collaboration or collusion between officers demonstrated by the use of exactly the same words or phrases.

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Careful attention should also inconsistencies between them.

be

paid

to

checking

xxx.

I sometimes ask the officer if he/she met with the Crown prior to court and ask what they reviewed, and what discussion they had. It is truly unbelievable how often an officer has little or no recollection of the content of their discussions a day before or even the morning of trial. Yet, miraculously he/she can instantly retrieve from memory a key detail or observation about events from a year or more prior to trial without the benefit of notes.

xxxi.

Ask the officer about discussions about the case with other officers as they wait in the hallway to testify and are comparing notes outside the courtroom. Officers may continue to talk about their testimony notwithstanding the exclusion of witnesses order made by the court.

xxxii.

It is also a very profitable endeavour to go through all of the previously mentioned documentary tools in the box and compare and contrast the information found in each with the other. This is often a painstaking exercise. However, when this information is effectively marshalled in cross-examination it is devastating.

xxxiii.

Note, in particular, in the included trial transcripts, the impact of the cell clock and breath videos used in the crossexamination of key police witnesses. Not only is the nature of contact as recorded in their notes different, the timing of the events and conversations do not match the information recorded in the investigatorsâ&#x20AC;&#x2122; notebooks.

xxxiv.

In one of the cases (Bulat) the investigator was forced to agree that the court would have been materially misled by his testimony (based on inadequate notes and reports) had it not been for the meticulous review and defence transcriptions of the video evidence recorded in the cell block. The trial judge adopted this premise in her judgment. Eliciting evidence such as this may permit counsel to invoke the principles in R. v.

Harrison concerning the officerâ&#x20AC;&#x2122;s truthfulness.

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xxxv.

Finally, it is useful to employ a series of simple questions to test the knowledge and actions of the officers. (see also the separate section on the Charter)

xxxvi.

For example, counsel may directly ask the officer a question as simple as:    

What are the required grounds you must have prior to executing the arrest of a citizen?

What is the meaning of “reasonable and probable grounds?”

What is the standard for “impairment by alcohol?”

Did the officer review the Criminal Code section prior to arresting your client?

xxxvii.

You may also be able cross-examine the officer to demonstrate that he has no knowledge of the key case law relevant to the proper consideration of laying the charge and formulating reasonable and probable grounds to charge your client.

xxxviii.

Counsel may want to specifically ask the officer if he has read the guiding case law decisions or a summary of them. In many cases counsel will uncover the fact that the officer is utterly unaware of the very decisions he or she should have reviewed when considering whether to lay a charge. For example, in a recent case it became clear that the officer laid charges on the basis of bodily harm suffered by one party in a fight. He viewed it as a “consensual fight” and concluded that the complainant could not have consented to the bodily harm. Actually my client was acting in self-defence and it was not a consensual fight at all. Interestingly when asked if he ever read R. v. Jobidon or R. v.

Paice or knew what their underlying reasons were, he said “no.”

xxxix.

Another related and fertile ground for cross-examination is when the arresting officer lays a charge, the information is sworn and various new charges are added later. This is often the result of charge screening by the police service court section or on the advice of a screening Crown.

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xl.

The officer may now be made your ally as you cross-examine him/her as to the complete absence, in their view of any reasonable grounds to lay all these additional charges. For example, what began as a simple over 80 operation charge has now expanded to impaired operation and dangerous driving.

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THE RULE IN BROWNE V. DUNN Counsel should remain cognizant of the rule when cross-examining police officers. It applies equally to this situation.

In The Law of Evidence, 7th Edition, Paciocco and Stuesser, the authors encapsulated the essential elements of the rule: It is not required that every witness be cross-examined, however, in certain circumstances fairness demands that it occur. Where counsel intends to contradict the witness by presenting contradictory evidence, the evidence should be put to the witness. It is especially unfair to a witness to address evidence that casts doubt on his veracity when he has not been given an opportunity to deal with that evidence. Besides being fair, challenging a witness also assists the trier of fact in assessing credibility.29 (eg. that police talked about their evidence, that MDT will contradict officer testimony and 10(b) scenario) It is important to note that, â&#x20AC;&#x153;in order to comply with the rule, counsel is not required to slog through every single detail to be contradicted. The necessary unfairness that triggers the rule only arises when there is a failure to cross-examine on central features or significant matters.â&#x20AC;?

Thus, it is not necessary to put every detail of the cross-examinerâ&#x20AC;&#x2122;s contrary position to the witness.30 Three examples seem to illustrate scenarios which frequently arise when police officers are being cross-examined on a failure to comply with this rule: a) Officer A prepares his duty book notes and Investigative Action Report. Officer B prepares the same documents. In doing so they collaborate in the preparation of these materials. The fact that they have done so may go directly to the credibility or reliability of the evidence of both officers. However, counsel never puts this scenario to officer A in cross-examination and only raises it in the crossexamination of officer B, not A. b) Officer A is cross-examined by defence counsel about the investigative steps taken during the course of the investigation. In doing so counsel does not ask any questions concerning radio call path records and MDT records. Counsel later seeks to cross-examine officer B based on such documents as business records

29 30

David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: 2015, Irwin Law) at pp. 472-474.

David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: 2015, Irwin Law) at pp. 472-474.

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pursuant to section 30 of the Canada Evidence Act, to contradict the times and activities testified to by officer A. (also beware of s.30(10)) c) Counsel has served a Charter Notice pursuant to the Rules alleging a breach of sections 10(a) and 10(b) of the Charter. The focus of the alleged breach is the implementation duty with respect to the process leading up to a call to Legal Aid duty counsel. It is intended to call the client to testify as to the denial of counsel of choice, and the discussions that took place with the arresting officer leading up to the phone call. These discussions demonstrate not only that the officer’s note taking is unrepresentative of what happened, but that the testimony of the officer is inconsistent with what took place. Counsel fails to put these exchanges to the officer. Another example, in this context, would be the failure to put the exchanges, captured on the cellblock audio-video which contradicts the officer, to him in cross-examination.

The consequences of these failures may be dire for your client and directly affect the outcome of the trial. However, what remedy may be resorted to is the subject of a case-by-case analysis As Paciocco and Stuesser observe where counsel has failed to comply with the rule: “There is no fixed consequence; the effect depends upon the circumstances of each case. The court should first see if the witness can be recalled. If that is not possible or appropriate, the weight of the contradictory evidence or submission may be lessened, or such evidence may be rejected in favour of the testimony of the opponent’s witness.”31 Finally, does your failure to cross-examine and confront the witness with the contradictory evidence open the door for the Crown to cross-examine your client on this very issue? The answer is no. In R. v. McNeill (2000), 144 CCC (3d) 551 (Ont. C.A.), Moldover J.A. determined that this would be improper as it would eventually amount to the accused being held responsible for the tactical decisions or oversights of his own counsel.

31

David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: 2015, Irwin Law) at pages 472-474.

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CHARTER It is beyond the scope of this presentation to provide a comprehensive guide as to how to cross-examine police witnesses with respect to Charter issues and breaches. This is meant to be a primer with respect to effective approaches for cross-examination on Charter breaches.

CHARTER CROSS-EXAMINATION: “INTO THE BREACH” A. INTRODUCTION Overheard in the barrister’s room at the courthouse: Defence lawyer #1: “I had this killer cross-examination on a 10(b) breach, for the life of me I cannot understand how the trial judge could have refused to exclude the evidence!”

Defence lawyer #2: “Stop! I get it. Now tell me about your 24(2) cross-examination and the evidence you elicited to establish the exclusion of the evidence.”

Defence lawyer #1: “What?”

B. THE FUNDAMENTALS 1) KNOW THE LAW: PROVE THE BREACH It is also beyond the scope of this paper to delve into the Charter jurisprudence in any depth. Needless to say there is nothing more essential for counsel to know and understand than the case law relevant to establishing a breach of a Charter section and a section 24(1) or 24(2) exclusion.

This is the most important tool in this cross-examination tool box. Once you have thoroughly absorbed the Crown brief focus on thematically examining how to exploit areas where you have a realistic opportunity to establish, on the balance of probabilities, Charter breaches.

Just because the threshold for establishing a breach is relatively low this should not result in a “kitchen sink” strategic approach to the preparation of your Charter Notice or your cross-examination.

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Be mindful of your ability to not only establish the breach, which may necessitate the calling of evidence, including the client, but also how doing so increases your capacity to exclude the relevant evidence.

This will be informed by your review of the guiding case law available. Care must be taken not to dilute genuinely strong breaches with a Notice that refers to others that cannot be proven and lack real merit. On the other hand, where breaches can be proven which, by themselves considered individually, would not result in a section 24(2) exclusion per se, (which you may readily concede to the trial judge), the multiplicity of such breaches may carry the day in your argument for exclusion.

The exercise of discretion and real critical judgment at the front end will often lay the foundation for a successful cross-examination of the police witnesses and exclusion at the back end.

Remember as you internally debate your options, give the judge a simple path to the result you seek.

2) THE NOTICE The fundamental first step is to adequately describe the Charter breach in the Notice required to be filed pursuant to the Rules of the Court and the evidence associated with it. The Rules do not require an Affidavit (in particular from your client) in support of the Application.

It can be useful, depending upon your plan for cross-examination, to append segments of the officer’s notes and reports to your Notice. For example, notebooks and reports which have no reference to the conversations leading up to and culminating in the “default” call to duty counsel assist the judge immediately grasp that there is a problem. You may also want to attach transcripts of police videos, 911 calls, and call path and MDT records.

More importantly, if you fail to properly outline the nature and extent of the alleged breach you may be confronted with a Crown objection. Some Crown counsel may seek to dismiss your Charter Application at trial or constrain the scope of you crossexamination because a lack of specific detail. This could be disastrous not only for the outcome of the client’s case, but also for the professional reputation of counsel vis-à-vis the client, the Crown’s offence and judges of that court.

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It is essential that the Charter Notice contain enough detail to inform the judge and the Crown of the nature of the breach, the potential evidence in support of it, and clear assertions as to why the evidence should be excluded under either section 24(1) or 24(2). This does not mean that you include only a recitation of the Charter section you allege was breached, but some real detail as to why, how and by whom the breach took place.

Much has been said by appellant courts about counsel “trivializing the Charter” by bringing worthless, unsupported Charter Application which flame out quickly during the trial. You do not want to start with a distraction where your conduct becomes the focus of the Charter debate. The Notice should clearly illustrate where you will take the Crown police witnesses in cross-examination.

3) THE ONUS As illustrated by the earlier dialogue between counsel, too many lawyers think it is game over once they establish the breach. They think or believe that the trial judge will then do the necessary legal and evidentiary analysis to resolve the key issue of exclusion of evidence in their favour. They are dreaming the impossible dream. The result will be that you lose the exclusion argument while winning a pyrrhic victory on the breach.

4) THE CROSS-EXAMINATION BLUE PRINT: THREE STEPS AWAY FROM SUCCESS Counsel should view the key elements of the seminal section 24(2) decisions in Grant, Harrison, Shepherd and Suberu as the starting points when laying out the cross-examinations of police witnesses.

A careful review of these cases provides a remarkable number of actual, circumstances and characteristics which may be exploited by means of a wellplanned cross-examination. These include the essential elements not only to establish the Charter breaches but also to build a convincing case proving exclusions are merited.

The following is an excerpt from a LAO Research Memo by Mathew Oleynik which I have found particularly helpful and to which I return to focus my thinking when formulating my section 24(2) cross-examination plan: The term “administration of justice” embraces maintaining of the rule of law and the upholding of Charter rights in the justice system as a 56

whole. The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. It does not refer to immediate criticism resulting from an acquittal.32 The focus of s. 24(2) is long-term, prospective, and societal, and is on the broad impact of admissions of the evidence on the long-term repute of the justice system. The provision starts with the proposition that damage has already been done to the administration of justice by the Charter breach and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but at systemic concerns. 33 The three branches of the revised test are as follows: 1. Seriousness of state conduct: In assessing the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send the message that the courts “effectively condone state deviation from the rule of law.” This assessment is not to punish the police or to deter Charter breaches (although such deterrence may be a “happy consequence”), but to maintain public confidence in the administration of justice. Admissions of evidence obtained though inadvertent or minor violations may minimally undermine public confidence in the rule of law, while admission of evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Factors relevant to this assessment include extenuating circumstances; good faith by the police; police ignorance; negligence; or willful blindness of Charter standards; willful or flagrant disregard for Charter standards, the extent to which the breach was deliberate; and whether the Charterinfringing conduct was part of a pattern.34

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-68.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 69-70.

34 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 72-75.

32 33

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It should be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. However, the absence of institutional or systemic abuses does not mitigate a Charter breach.35 2. Impact of the breach: The second factor requires that courts assess the impact of the Charter breach on the Charter-protected interests of the accused, and the extent to which those interests were actually undermined. The impact of a breach may range from being “fleeting and technical” to being “profoundly intrusive.” The seriousness of the breach must be considered from the perspective of the accused. The more the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, thereby bringing the administration of justice into disrepute.36 3. Society’s interest in adjudication: Society generally expects that a criminal allegation will be adjudicated on its merits. The court must assess whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence is an important factor in this line of inquiry; however, the view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter. The importance of the evidence to the Crown’s case is also a factor at this stage.37 The first branch of the s. 24(2) analysis, the seriousness of the offence cuts both ways: while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it is also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

Charter protections must be construed so as to apply to everyone, R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 25.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 28.

37 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 79-83.

35 36

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even those alleged to have committed the most serious criminal offences. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s.24(2). We expect police to adhere to higher standards than alleged criminals.38 The second and most valuable resource is The Law of Evidence by Justice David M. Paciocco and Professor Lee Stuesser, 7th Edition, chapter 9. Here the authors provide an authoritative approach to the analysis of section 24(2) which contains not only a clear and comprehensive explanation of the guiding principles but also a series of topic headings which can be used by counsel as the themes for officer crossexamination as well as the leading of other evidence.

For example, beginning at page 407 there is a very helpful outline of the areas that you might explore, depending on the particular facts of your case, relating to the cross-examination of officers, entitled “Step 1 in Assessing Disrepute – Gauging the Seriousness of the Charter Infringing State Conduct,” then continuing through step 2 and 3 of the Grant analysis. Under step 1 the authors elaborate upon: 1. Officer Conduct This includes an analysis of the “Blameworthiness of the Conduct,” measured along spectrum of good faith to bad faith 2. Institutional and Systemic Conduct 3. Patterns of Violations 4. Degree of Departure from Charter Standards 5. Extenuating Circumstance – Necessity and Emergency Success is within reach when counsel can bring the officer’s conduct squarely within as many of the criteria for exclusion set out in these headings.

5) REWRITING THE SCRIPT: USING ALL THE AVAILABLE TOOLS Often the most effective questions in building the case for breaches and exclusion of evidence are simple ones but infrequently resorted to.

What follows is a list of areas and materials to be used in formulating a successful cross-examination of officers:

38

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 34, 40-41.

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a) Ask the officer what his oath of office was. Remarkably, few can recall it.

For municipal and O.P.P. officers it includes adherence to Charter principles, as previously illustrated. b) Similarly, section 1 of the Police Services Act also has a statement of principles concerning the Charter to be adhered to by officers.

Officers who cannot recall or are unaware of one or both of these will provide reinforcement for arguments about the breaches themselves as they now may be viewed as breaching their oath of office and the fundamental guiding principles of the Police Services Act itself (institutional and systemic). c) Consider using some of these simple straightforward questions and topics. You will be surprised by the answers. In no particular order: i.

Are you familiar with the Charter of Rights and Freedoms?

ii.

You of course have your rights and caution card in your duty book and have used it many times over the years?

iii.

You have received specific training concerning the Charter of Rights at Police College, correct?

iv.

You understood that training did you not?

v.

You received further on-the-job training from your coach officer during you 500 hours of probation, concerning the application of the Charter on the street in real life situations, correct?

vi.

Are you confident in your knowledge of the provisions of the Charter which you use on a daily basis as a police officer?

vii.

Are you confident that you have an accurate understanding of the meaning and importance of those rights?

viii.

You are confident you can explain, if necessary, in laymanâ&#x20AC;&#x2122;s terms the accurate meaning of the rights to a detained or arrested citizen so that he/she may fully understand them?

60

ix.

x.

You agree that the fullest compliance possible with an individual’s Charter rights is part of your core duties and obligations as a police officer?

For example, if, after reading the “rights to counsel” a detainee asks you to explain the meaning of the phrase “retain and instruct counsel without reasonable delay” what would you say to make it fully understandable to a layman?

xi.

Please advise what Charter provisions applied in your arrest of Mr. X. (eg. s. 10(a), s.10 (b))

xii.

Are you able to tell the court what those sections state (whether it is verbatim or in general terms), without any reference to your rights card?

xiii.

How did you explain these rights to my client?

xiv.

When you arrested my client what Criminal Code provisions did you use?

xv.

What are the legal grounds required for arresting a citizen?

xvi.

What did you rely on in this case?

xvii.

Review with the officer what notes, if any, have been made concerning any dialogue with the arrestee surrounding the rights and cautions. Some officers make virtually no notes concerning these discussions which may be critical in reference to establishing breaches and section 24(2) exclusionary relief.

xviii.

Ensure that all of the ‘tools’ available have been thoroughly canvassed including the Radio Call Path, the MDT record and all cell videos and breath tech videos etc. to examine the extent of Charter compliance.

xix.

It is always a good sign when the arresting officers has made no notes or extremely vague and uninformative notes concerning the grounds of arrest, rights to counsel (informational component) as well as the access to counsel and choice of counsel (implementation component). This opens the door to inserting 61

xx.

your client’s narrative into the proceedings, particularly when there are audio video recordings of the process. (see especially the Bulat cross-examination of the arresting officer on s. 10 (b) issues) It is of crucial importance that you conduct a Browne v. Dunn crossexamination in this context for two reasons. First, it is an evidentiary requirement especially if you are going to call your client to provide an alternate narrative. Second, the officer realizing that the information he/she failed to note will be emerging at the trial, may admit that this proposed narrative is an accurate one.

xxi.

In the area of access to counsel, it is often fruitful to examine the dialogue between the client and the officer when the client hangs up the phone. Far too often the officer delves into areas which would be covered by solicitor-client privilege. It is not part of the officer’s duties to monitor the quality of the lawyer, type of practice of the lawyer or the nature of the advice or satisfaction with it. (see R. v. Sinclair and R. v. Willier)

xxii.

Another area which is surprisingly effective to explore is to ask the officer questions such as: 

  

Whether there are frequent updates provided by their police source as to the important developments in case law providing officers with guidance as to their duty under the Charter. (systemic issues) Whether the officer is satisfied with the way he/she conducted the Charter rights implementation in this case.

Whether the officer could have done a better job.

Whether in his/her own opinion this officer was careless or deliberate in his/her conduct.

The extensive transcripts of my cross-examinations of two different investigating officers provide vivid examples of the successful use of these techniques to obtain Charter remedies.

They also clearly demonstrate a successful application of the equation alluded to earlier: DISCLOSURE + CROSS-EXAMINATION + SUBMISSIONS = DECISION(not guilty) 62

6) THE JUDGMENT The judgeâ&#x20AC;&#x2122;s decision is the measure of your success in cross-examining the police witnesses. Moreover, findings of lack of credibility or reliability or bias in the trial proper provide counsel with important feedback as to their successful use of the tools available.

Similarly, much can be learned about conducting future trials by carefully reviewing the judgeâ&#x20AC;&#x2122;s decision with respect to your Charter related cross-examination, whether you are successful or unsuccessful in your efforts on behalf of the client. If it is the latter do not just get mad, get better.

63