Police Duty to Collect Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 96560)

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]

When considering officer conduct as it relates to the integrity of an investigation or officer safety, police should be given "a good deal of leeway."[5]

Even where the inquiry is of private information of the accused, there is no obligation to obtain a judicial authorization to interview anyone.[6]

  1. ↑ R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, 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 ONCA 432 (CanLII), [2009] OJ No 2123, per curiam, at para 1
  2. ↑ Darwish, supra
  3. ↑ Darwish, supra, at paras 29 to 41
    R v Dias, 2010 ABCA 382 (CanLII), 265 CCC (3d) 34, per curiam, at para 38
    R v Levin, 2014 ABCA 142 (CanLII), 572 AR 382, per curiam, at para 45
  4. ↑ R v Jackson, 2015 ONCA 832 (CanLII), 332 CCC (3d) 466, per Watt JA, at paras 80 to 81
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J, at paras 23 to 24
  5. ↑ R v Wight, 2007 ONCA 318 (CanLII), 47 CR (6th) 271, per Moldaver JA, at para 54 ("...when it comes to officer safety and preserving the integrity of their investigation, police officers should be given a good deal of leeway and second guessing should be avoided.")
  6. ↑ R. v Molyneaux, 2020 PECA 2 (CanLII), at para 35, <https://canlii.ca/t/j57g8#par35>

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 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J
    R v Levin, 2013 ABQB 31 (CanLII), 549 AR 264, per Shelley J, at para 40
  2. ↑ McNeil, supra, at paras 48 to 49
    R v JEK, 2016 ABCA 171 (CanLII), 337 CCC (3d) 222, per Dinkel JA, at para 57
  3. ↑ R v Levin, 2014 ABCA 142 (CanLII), 572 AR 382, per curiam, at para 44
  4. ↑ R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, 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 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]

Making Notes

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]

  1. ↑ R v Hanano, 2006 MBQB 202 (CanLII), 41 CR (6th) 177, per Spivak JA, at para 20
  2. ↑ R v Wicksted, 1996 CanLII 641 (ON CA), [1996] OJ No 1576, 29 OR (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.")
  3. ↑ R v Korski, 2007 MBQB 185 (CanLII), 218 Man R (2d) 69, per Beard J
    Darwish, supra
    R v Barnes, 2009 ONCA 432 (CanLII), OJ No 2123, per curiam
  4. ↑ Korski, supra
  5. ↑ R v Pickton, 2005 BCSC 1240 (CanLII), per Williams J, at para 44
  6. ↑ R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, per Doherty JA, at para 30
  7. ↑ R v West, [2001] OJ No 3406, [2001] O.T.C. 711 (SCJ)(*no CanLII links) , per Hill J, at para 75
    Darwish, supra, at para 30
  8. ↑ Wood v Schaeffer, 2013 SCC 71 (CanLII), [2013] 3 SCR 1053, per Moldaver J ("The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate")
  9. ↑ R v Bailey, 2005 ABPC 61 (CanLII), 32 CR (6th) 344, per Van de Veen J
    Wood v Schaeffer, ibid., at para 67 (“that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions ….”)
    See also R v Mascoe, 2017 ONSC 4208 (CanLII), per Hill J(complete citation pending), at paras 112 to 115
  10. ↑ R v Medwed, 2011 ABQB 231 (CanLII), 12 MVR (6th) 186, per Miller J, at para 3 ("Upon reviewing the authorities it can be safely stated that an officer is required to note “significant observations”, but the officer is permitted a wide degree of discretion in deciding what is “significant” and how detailed the notes must be...")
  11. ↑ R v Johnstone, 2019 ABQB 965 (CanLII), per Renke J, at para 54
  12. ↑ R v Bidyk, 2003 SKPC 124 (CanLII), 236 Sask R 230, per Whelan J
    R v Abrey, 2007 SKQB 213 (CanLII), 157 CRR (2d) 367, per Ball J
  13. ↑ see Analyzing_Testimony#Police_Notes

Duty to Preserve Evidence

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]


  1. ↑ R v Satkunananthan, 2001 CanLII 24061 (ON CA), 152 CCC (3d) 321, per curiam, at para 75 (Ont. C.A.) ("As it was disclosable, the police had an obligation to preserve it so that it could be disclosed")
  2. ↑ R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J, at para 20
  3. ↑ R v Lees, 2011 SKPC 98 (CanLII), [2011] S.J. No 507 (SKPC), per Kalmakoff J

Note-taking

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]

  1. ↑ R v Clark, 2017 ABQB 643 (CanLII), per Renke J, at para 19
  2. ↑ Wood v Schaeffer, 2013 SCC 71 (CanLII), [2013] 3 SCR 1053, per Moldaver J, at paras 62 to 68 ("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 invetigator")
    R v Davidoff, 2013 ABQB 244 (CanLII), per Graesser J, at paras 25 to 27
  3. ↑ R v Turgeon-Myers, 2019 ABQB 493 (CanLII), per Renke J, at para 68 ("Nonetheless, the gap in Cst. Burrows’ notes does not have an automatic consequence respecting his reliability ... The effect of absent notes must be assessed on a case-by-case basis.")
    R v Skookum, 2019 YKSC 8 (CanLII), per Campbell J, at para 75 ("The absence of a notation in an officer’s notes regarding a relevant observation or event does not automatically lead to the conclusion that the observation was not made or the event did not occur. The testimony of an officer is the evidence at trial, not his or her notes. The absence of a note is however a factor to consider in assessing the reliability and the credibility of the officer’s testimony")
    Davidoff, supra, at para 27 (" There is no rule of law that says a police officer’s testimony, unsupported by notes, is inadmissible or deemed to be incredible or untrustworthy. Notes, the absence of notes and the quality of notes, are only factors in assessing credibility.")
  4. ↑ R v Pickton, 2007 BCSC 2029 (CanLII), [2007] BCJ No 3100 (B.C. S.C.), per Williams J, at para 9
  5. ↑ R v Bailey, 2005 ABPC 61 (CanLII), 32 CR (6th) 344, per Van de Veen J, at paras 38, 46
  6. ↑ Bailey, supra, at paras 38, 46
  7. ↑ 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

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