Officer’s notes are the most critical and common part of disclosure that must be provided to the defendant pursuant to their constitutional right to a fair trial (sections 7 and 11(d) of the Charter). If the notes fail to contain adequate information concerning the essential elements of the offence, the prosecutor will have to consider whether they can proceed with the charge, withdraw it or contact the officer to provide further information. If the notes are illegible, the defence will invariably request typed notes in order to receive meaningful disclosure. Bifurcated disclosure may also occur if some of the officer’s notes are typed and some are written in a separate notebook.
If the notes are lost or misplaced, and disclosure cannot be provided, the prosecutor will not proceed with the charge and will withdraw it. If several officers are involved in an investigation, time is spent trying to collect all officers’ notes to be provided for disclosure. Often the prosecution staff send follow up requests for missing officers’ notes that have not been included in the prosecution brief and disclosure package. All of these problems lead to either charges being withdrawn or additional time being spent by police officers and their support team, as well as prosecution staff in following up with requests for legible and complete disclosure.
Problems encountered by prosecutors and impact on courts in York Region’s Provincial Offences Courts
Handwritten notes present a significant problem in having to request typed notes, difficulty in defendants and prosecutors reading handwritten notes, and inadequate information contained in the notes. Using York Region’s Provincial Offences Part I prosecution team as an example, the York Region prosecution office received disclosure requests for officers to type their handwritten notes in approximately 10% of the Part I POA proceedings that were prosecuted and for which disclosure was requested.
The York Region prosecutor’s office received approximately 30,000 to 33,000 disclosure requests per year before the March 2020 pandemic court closure for Part I POA proceedings. This meant that the prosecution team would have requested officers’ typed notes to be prepared for roughly 3,000 cases. If an officer and the enforcement support staff required 1 hour to receive the request, retrieve the notes, type them, and deliver them to the prosecution office, and the prosecution staff spent an additional hour dealing with the follow up requests, this would require 3,000 hours of enforcement agency time and 3,000 hours of prosecution staff time. In addition, if a response for the typed notes was not received in a timely fashion, prosecution staff had to send repeated requests which could add to the time involved.
Another concern involved prosecutors having to withdraw charges for which disclosure was requested due to not receiving disclosure or inadequate information in the notes. Approximately 10% of the 30,000 disclosure requests resulted in charges being withdrawn due to missing or inadequate information or disclosure. This would be approximately 3,000 charges. The loss of revenue involving withdrawal of charges due to no disclosure would amount to an average of $80 per charge or $240,000.
A further issue that arises involves defendants asking for adjournments on the trial date or justices of the peace not wanting to proceed with a trial due to the defence not having requested or received disclosure. In some cases, the non-disclosure issue arises where the officer prepared some notes electronically and had additional notes in a notebook. Both sets of notes must be provided as part of the disclosure package. Often officers attend court with their notebook which was not disclosed to the prosecution or defence, leading to an adjournment request by the defence. If notes were prepared electronically and were all in one location, adjournments for non-disclosure of the separate handwritten notes in the notebook would be avoided. Approximately 5% of Part I trial matters were adjourned due to defendants not being ready to proceed due to not having requested or received disclosure.
Typically, 60,000 Part I POA proceedings were set for trial in York Region annually before the pandemic court closures. Officers would spend an average of 3 hours attending court. 3,000 attendances would be a wasted officer day if disclosure was not provided and cases were adjourned, leading to 9,000 officer hours of time lost in available enforcement in the community. If electronic notes were available, disclosure could be made available more readily and reduce adjournment requests.
Cost and time savings for courts
Prosecution staff spend a considerable amount of time processing disclosure requests. eNotes will significantly benefit prosecutors in performing their duties through electronic records management, the ability to review notes and search through notes for key information, records retention and storage, and providing defendants with legible and complete disclosure in a more efficient and effective way. Disclosure can be provided efficiently through a self-service on-line portal or by email, thus saving time and expense in processing disclosure requests. Fewer adjournments due to non or inadequate disclosure would lead to fewer delays in court proceedings, thus reducing the number of s 11(b) Charter delay applications.
Recommendations for a Solution
It is recommended that notebooks with handwritten notes be eliminated and replaced with an electronic notes system. eNotes will be a significant improvement in how officer’s notes are prepared, stored, managed, and made available to defendants as part of the prosecutor’s disclosure obligations. eNotes can be secured against alteration through a locking, HASH ID and tracking system.
Having templates for common offences with mandatory fields will ensure that all essential elements of the offence are noted, which will allow defendants and their legal representatives to make a more informed decision on whether to proceed to trial or attempt to resolve the charge. Prosecutors will have better evidence to assess whether they have a reasonable prospect for a conviction and will be able to read the notes with ease. eNotes is definitely the way of the future.