It is recognized that the accused has "limited means to access relevant materials in the hand of those third parties. The Crown is in a better position to bridge the gap between first-party and third-party records by attempting to obtain records when "put on notice of its existence" and it is "reasonably feasible to do so." [2]
Where the Crown can secure third-party cooperation, the Crown may be able to avert the need for court applications. [3]
The Crown should "take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party". [4] This, however, does not go so far as to require the Crown to "conduct investigations that may assist the defence". Otherwise, the prosecution will "effectively surrender control of the investigation to the defence, or ultimately face a stay of the criminal charges" [5]
This duty is engaged where the accused provides evidence of “serious misconduct” and identifies third-party information that it believes is “relevant” to that “serious misconduct”. This includes evidence of attempts to fabricate evidence. Where such evidence is put forward the Crown has a duty to make inquiries to third parties and if unsuccessful provide notice to the Defence to make their own O'Connor application. Where any information is retrieved it will be subject to a standard of relevancy. [6]
The duty to inquire does not extend into seeking out forensic audit reports that may support the defence. [7]
Generally, there is no violation of the disclosure obligation arising from a failure to collect information. [1]
There is no burden on the police to record evidence of all conversations with witnesses, even important ones. [2]
The police do not have a general obligation to collect evidence in a certain manner or create specific material disclosure and so a failure to do so would not amount to a failure to provide disclosure or impact the right to make full answer and defence. [3]
The police have no obligation "to conduct their investigation in any particular way, to record every word spoken in an interview or to take a written statement from every potential witness who is interviewed." [4]
Investigative police strategies and "tactical information are presumptively not disclosable absent a particularized claim to relevance." [5]
The defence cannot direct the course of an investigation. [6] Accordingly, the defence cannot "conscript the police to undertake investigatory work for the accused" through the use of disclosure demands. [7]
Notes are an important part of the criminal justice system. They are often the closest recording to what a witness saw or experienced. They can be the most accurate record of events. [8]
There is a general duty for an officer "to take complete, accurate and comprehensive notes." [9]
Police are required to record "significant events". What constitutes significant events and the level of detailed recorded is granted wide discretion. [10]
This duty does not include a duty to take photos or videos of events. [11]
The failure to photograph the purse and identification card was not a violation of any duty owed by Cst. Feser. Photographs might have supported the narrative of events provided by Cst. Feser and reduced prospects for challenge. The case must simply be decided on the evidence that there was. And this is not a case where any significant inferences can be drawn from the absence of evidence.
Where the handwritten notes of an officer are illegible, then the obligation of disclosure can require the crown to transcribe the notes or otherwise provide them in legible form. [12]
Failure to make notes permits the judge to draw inferences from it including that the events testified to did not happen. [13]
The Crown must preserve evidence on a "close case" for the purpose of disclosing it should charges arise. [1]
There is a duty to preserve evidence that arises from the right to full answer and defence. [2]
Police are not obliged "to preserve everything that comes into their hands on the off-chance that it will be relevant in the future." [3]
It has been recognized that the "sheer passage of time" can reduce the reliability of memories. [1]
Police officers have a duty to take contemporaneous notes, recording their observations accurately and comprehensively. [2]
The failure to take notes does not "automatically" affect the reliability of the officer's recollections. Rather it is determined on a case-by-case basis. [3]
Methods of Notekeeping
The court has no authority to direct officers on how they should keep their notes. [4] They should not be micromanaging the police's handling of a case. [5]
Possible Charter Breach
Incomplete notes do not breach the right to full answer and defence. As long as the majority of the officer's evidence is recorded in some fashion there will be no violation. [6]
A complete inconsistency between notes and testimony may result in a violation of s. 7 and stay of proceedings. [7]
There is no "absolute right to originals" of records seized by police. However, when originals are not available the Crown should explain their absence. [1]