1. Ontario Building Officials Association Electronic Notes Prepared by Ted Allen Supervising Prosecutor Region of York October 2014

2. Electronic Notes Electronic notes (e notes) usually in the form of “word” or a computer program approved by the municipality Electronic notes (e notes) usually in the form of “word” or a computer program approved by the municipality They are typed and stored on a computer They are typed and stored on a computer Ability to print and use in court Ability to print and use in court Used in place of handwritten notes Used in place of handwritten notes

3. Electronic Notes There isn’t any case law directly on point outlining the recording, storage and use of e notes in court There isn’t any case law directly on point outlining the recording, storage and use of e notes in court Commonplace for enforcement and building inspectors to wonder about the viability of the use of e notes in court Commonplace for enforcement and building inspectors to wonder about the viability of the use of e notes in court

4. Electronic Notes - examples allowing the use of e notes The Law of Evidence in Canada, Second Edition, by John Sopinka, Sidney N. Lederman and Alan W. Bryant The Law of Evidence in Canada, Second Edition, by John Sopinka, Sidney N. Lederman and Alan W. Bryant Refreshing a witnesses memory – “a witness may rely on any means to jar or spark a memory, what triggers recollection is not significant Refreshing a witnesses memory – “a witness may rely on any means to jar or spark a memory, what triggers recollection is not significant

5. Electronic Notes -examples allowing the use of e notes McWilliams -Canadian Criminal Evidence Fourth Edition Volume 2 McWilliams -Canadian Criminal Evidence Fourth Edition Volume 2 References R v. B (K.G.) “What triggers recollection is not significant References R v. B (K.G.) “What triggers recollection is not significant References Henry v. Lee (1814) in part “it is not the memorandum that is the evidence but the recollection of the witness” References Henry v. Lee (1814) in part “it is not the memorandum that is the evidence but the recollection of the witness”

6. Electronic Notes -examples allowing the use of e notes R v Colangelo [2007] O.J. No. 4070 York Region R v Colangelo [2007] O.J. No. 4070 York Region “Perhaps the first rule of the law of evidence is that all evidence that is relevant that goes to prove a fact in issue and not subject to any exceptions such as the rule against hearsay, is admissible” “Perhaps the first rule of the law of evidence is that all evidence that is relevant that goes to prove a fact in issue and not subject to any exceptions such as the rule against hearsay, is admissible”

7. Electronic Notes -examples allowing the use of e notes Colangelo Colangelo –A forgetful witness may rely on any means to jar or spark a memory. What triggers recollection is not significant –Although not the only way, the usual means to revive memory is by reference to a written document made at an earlier time by the witness –Officer may give evidence of matters outside of his notes

8. Electronic Notes -examples allowing the use of e notes Case law points towards the use of any means to jar or spark a memory, which indicates e notes are acceptable Case law points towards the use of any means to jar or spark a memory, which indicates e notes are acceptable

9. Electronic Notes In BCA prosecutions, it is very rare that the notes actually go into evidence In BCA prosecutions, it is very rare that the notes actually go into evidence Your notes are referred to in order to give viva voce (verbal) evidence Your notes are referred to in order to give viva voce (verbal) evidence

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

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

12. Electronic Notes After the court hears the cross examination it can apply the “weight” to the evidence based on both the initial testimony and cross examination After the court hears the cross examination it can apply the “weight” to the evidence based on both the initial testimony and cross examination (This can apply whether or not your notes are electronic or hand written) (This can apply whether or not your notes are electronic or hand written)

13. Electronic Notes Court may apply great weight to your evidence Court may apply great weight to your evidence Court may apply very little weight to your evidence Court may apply very little weight to your evidence But should not base the “weight” evidence application based on written vs e notes But should not base the “weight” evidence application based on written vs e notes

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

15. Electronic Notes E notes and written notes should be treated the same E notes and written notes should be treated the same -Any problems with your notes should be disclosed to the prosecutor -Prosecutor to decide whether to inform the defense or not proceed to trial

16. Electronic Notes Bylaw enforcement going to e notes Bylaw enforcement going to e notes Police agencies going to e notes Police agencies going to e notes Electronic tickets at York Region and beginning in Toronto Electronic tickets at York Region and beginning in Toronto

17. Electronic Notes London (City) v. Caza [2010] O.J. No. 1016 London (City) v. Caza [2010] O.J. No. 1016 Justice of the peace quashed 3 tickets because signature was electronic Justice of the peace quashed 3 tickets because signature was electronic Appeal court ruled signature was properly affixed according to the officer’s duties pursuant to the Provincial Offences Act Appeal court ruled signature was properly affixed according to the officer’s duties pursuant to the Provincial Offences Act

18. Electronic Notes Courts are being more tolerable to modern changes as a result of electronic mediums today. Courts are being more tolerable to modern changes as a result of electronic mediums today. E notes are becoming more traditional E notes are becoming more traditional

19. Electronic Notes Questions? Questions?