Police Duty to Collect Evidence

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General Principles

See also Analyzing Testimony#Lack of notes

There is no free-standing constitutional right to an "adequate investigation of the charges against him or her". They do not violate the right to full answer and defence.[1]

The Crown does not have an obligation to investigate possible defences.[2]

The Crown has no obligation to send police or other authorities to secure additional statements from witnesses requested by defence.[3]

The police has a duty to provide Crown all relevant materials that are in their possession.[4]

  1. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA, at para 29 ("An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her...Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence."), leave to SCC refused
    R v Barnes, [2009] OJ No 2123, 2009 ONCA 432 (CanLII), per curiam, at para 1
  2. Darwish, supra
  3. Darwish, supra at para 29 to 41
    R v Dias, 2010 ABCA 382 (CanLII), per curiam, at para 38
    R v Levin, 2014 ABCA 142 (CanLII), per curiam, at para 45
  4. R v Jackson, 2015 ONCA 832 (CanLII), per Watt JA at para 80 to 81
    R v McNeil, 2009 SCC 3 (CanLII), per Charron J at para 23 to 24

Duty to Inquire

There is a "Stincombe-like" duty on the part of the Crown to inquire into areas of potential evidence.[1]

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]

  1. R v McNeil, [2009] 1 SCR 66, 2009 SCC 3 (CanLII), per Charron J
    R v Levin, 2013 ABQB 31 (CanLII), per Shelley J, at para 40
  2. McNeil, supra at para 48 to 49
    R v JEK, 2016 ABCA 171 (CanLII), per Dinkel JA, at para 57
  3. R v Levin, 2014 ABCA 142 (CanLII), per curiam, at para 44
  4. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA
  5. Darwish, ibid.
  6. Levin, supra, at para 40
  7. Darwish, supra

Collection of Evidence

Generally, there is no violation of the disclosure obligation arising from a failure to collect information.[1]

There is a duty to preserve evidence that arises from the right to full answer and defence.[2]

There is a general duty for an officer "to take complete, accurate and comprehensive notes."[3]

There is no burden on the police to record evidence of all conversations with witnesses, even important ones.[4]

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.[5]

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.[6]

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."[7]

Investigative police strategies and "tactical information are presumptively not disclosable absent a particularized claim to relevance".[8]

Police are not obliged "to preserve everything that comes into their hands on the off-chance that it will be relevant in the future."[9]

The defence cannot direct the course of an investigation.[10] Accordingly, the defence cannot "conscript the police to undertake investigatory work for the accused" through the use of disclosure demands.[11]

  1. R v Hanano, 2006 MBQB 202 (CanLII), per Spivak JA at para 20
  2. R v La, [1997] 2 SCR 680, 1997 CanLII 309 (SCC), per Sopinka J at para 20
  3. R v Bailey, 2005 ABPC 61 (CanLII), per Van de Veen J
  4. R v Wicksted, 1996 CanLII 641 (ON CA), [1996] OJ No 1576, 29 O.R. (3d) 144, per Goodman JA at p. 155: ("As pointed out by the trial judge, counsel were unable to provide him, nor were counsel able to provide this court with any Canadian authority wherein a stay was granted for the failure of investigating police officers to record conversations with important witnesses.")
  5. R v Bidyk, 2003 SKPC 124 (CanLII), per Whelan J
    R v Abrey, 2007 SKQB 213 (CanLII), per Ball J
  6. R v Korski, 2007 MBQB 185 (CanLII), per Beard J
    Darwish, supra
    R v Barnes, 2009 ONCA 432 (CanLII), per curiam
  7. Korski, supra
  8. R v Pickton, 2005 BCSC 1240 (CanLII), per Williams J, at para 44
  9. R v Lees, 2011 SKPC 98 (CanLII), [2011] S.J. No. 507 (SKPC), per Kalmakoff J
  10. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA, at para 30
  11. R v West, [2001] OJ No 3406, [2001] O.T.C. 711 (S.C.J.)(*no CanLII links) , per Hill J, at para 75
    Darwish at para 30

Note-taking

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.[1]

The court has no authority to direct officers on how they should keep their notes.[2] They should not be micromanaging the police's handling of a case.[3]

A complete inconsistency between notes and testimony may result in a violation of s. 7 and stay of proceedings.[4]

  1. R v Bailey, 2005 ABPC 61 (CanLII), per Van de Veen J at para 38, 46
  2. R v Pickton, 2007 BCSC 2029 (CanLII), [2007] BCJ No. 3100 (B.C. S.C.), per Williams J, at para 9
  3. Bailey, supra at para 38, 46
  4. e.g. R v Karunakaran, 2008 ONCJ 397 (CanLII), per Armstrong J

Originals

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]

  1. R v Williams, 2017 ONSC 572 (CanLII), per Munroe J, at para 124

See Also