ontario building officials association court proceedings · ontario building officials association...

Ontario Building Officials Association

Court Proceedings

Notes Statements

Voir DireCertified Statement of Record

Evidence Defense tactics

Cross examination survival tipsPOA Part I and Part III

Note Taking

• Why do you need to keep notes?– Record details

– Track evidence

– Refresh your memory

– Evidence in court

– Ensures a fair and impartial trial

– Disclosure (may result in a plea)

Note Taking• Zack

Officers notes missing important details lead to evidence being excluded

• BudisantosoOfficer had no notes evidence to unreliable

• MakhotaAt trial, the absence of notation of the information upon which the breath demand was made was fatal to the case

• HayesIndependent recollection from officer was not sufficient

Note Taking

Must not do:• Erase or Remove – (Cross out errors with

one line and initial).• Blank Spaces or Pages• Personal Information• Language - demeaning or derogatory• Duplicate Notebooks

Note Taking

Must Do:• Use police notebook and/or inspection sheets.• Blue/black permanent ink.• Notes must be legible and will be provided for

disclosure. • Include the “Facts in Issue” (the important

details).

Note Taking

• Time for Court– Ask Permission to use your notes

• When did you make your notes?• Are they in your own handwriting?• Have you made any additions or deletions?• Do you have an independent recollection of the

events?

Note Taking

– Do not say you recorded “all” pertinent information

– Stay Professional

What is my limit when asking questions?

• When investigating you may ask questions• If detaining a person to question them, must tell

them what you are investigating (s 10(a) Charter) – R v Nguyen (Jan 31, 2008 Ont CA)

• You stop asking questions when you have enough info to give you reasonable grounds to believe an offence was committed. (You have made your mind up, you have heard enough to convince you that the person committed an offence).

• A caution must be administered before any questions are asked from this point.

Statements• A court will likely allow a statement that is

made to a Person in Authority if:• It is voluntary• It is relevant• It is given by the accused• The accused was of sound mind

• Voir Dire may be conducted to determine if it was given voluntarily & the person was of sound mind .

VOIR DIRE

During the course of your investigation as a Building Inspector for the Municipality of (enter Municipality here), was a statement made or did you have conversation with the defendant (enter defendant’s name here)?

1. Did the defendant appear to understand English? 2. Where was the statement taken?3. Was the statement written down verbatim? 4. When did you take the statement?5. Were you in uniform or plain clothes? How were you dressed?6. Did you make any promises of favor in return for the statement?7. Did you threaten the defendant in any way?8. Did the defendant appear to understand your questions?9. Were his answers consistent with the questions you asked?10. Did he appear to be under the influence of any drugs or alcohol?11. Did he appear injured at all?12. Was the defendant under arrest or detention?13. Had you decided to charge defendant before the statement was taken?14. Did the defendant indicate that he wished to leave and not give you a statement?15. Did the defendant indicate any desire for counsel?16. Were any other persons of authority present for the taking of this statement? If so, what role did

they play?17. If there was a second inspector present then call him and determine his role and the questions

pertaining to threats and promises.

Certified Statement of RecordRegarding Service of an Order to Comply

s. 12 Building Code Act, 1992, S.O. 1992c. 23 as amended

Admissible under s. 37 (2) of the Building Code Act

I (name) certify that the attached Order to Comply, dated(date) and addressed to (name of defendant) was mailed

by registered mail on (date Order was mailed) to (address of Defendant), which is the last known address

of (name of defendant).Signature.

Chief Building Official.Municipality.

Dated this , day of , 2009.

Certified Statement of RecordRegarding Service of a Property Standards Order

s. 15.2 (2) Building Code Act 1992 S.O. 1992 c. 23 as amendedAdmissible under s. 37 (2) of the Building Code Act

I (name) certify that the attached Property Standards Order, dated (date) and addressed to (name of defendant) was mailed by registered mail on (date Order was mailed) to

(address of Defendant), which is the last known address of (name of defendant).

Signature.Property Standards Officer.

Municipality Dated this , day of , 2009.

Evidence

Is anything that is RELEVANT to the FACTS IN ISSUE.

(Who What Where When)

Evidence

• Categories of Evidence– Testimonial - statements made on the stand– Documentary - written documents/records – Demonstrative - diagrams, models, photo’s ...– Real - physical objects, materials or things

• best evidence rule• continuity

Evidence

• Hearsay Evidence

– Hearsay Evidence - is evidence, oral or documentary, containing statements of fact made by someone other than the witness testifying.

– “The landlord told me the contractor’s name was John Smith”.

– However, if an individual admits to an offence in your presence, such an admission may be permitted

Evidence

• There are testimonial factors which affect the credibility and reliability of a witness’ testimony. (Remember that you are the “witness”)

• The witness’ opportunity to perceive the event• The witness’ memory• The witness’ ability to communicate what he or she

observed• The witness’ sincerity• The witness’ professionalism

• Appearance• Demeanor• Notes

Just Before Court

• PREPARE FOR YOUR TESTIMONY

1. Review your notes

2. Review file reports

3. Observe/examine- exhibits/photos/videos

4. Predict likely defenses & lines of questions

Law Enforcement WitnessLaw Enforcement Witness

• Deliver the truth

• Present all facts in neutral fashion

• Remain fair

• Remain professional

General Rule

• Think about the question and think about your

answer

• Don’t be afraid to take your time

• Keep your answers as short and clear as

possible

Courtroom Demeanor

• Professional appearance

• Respect the presiding justice of the peace

• Appear confident

Defense TacticsDefense Tactics

• Flattery• Deliberate planned compliments• Inflation of ego• Followed by series of-

“Wouldn’t it be fair to say?”

Defense TacticsDefense TacticsDefense Tactics

• Needling the witness

• Intent:

Rattle / Upset / Anger

• Reasons….

(1) Can’t think, recall, express

(2) Destroys professionalism / credibility.

If officer bites- appears hostile, angry, and lessens credibility.


• Intimidation-body language

• Silence

• Lowering of Head

• Rolling of eyes

• Side-ways glances

• Slow shaking of head


• Invasion of body space

• Move deliberately up to witness box

• Excuse- look at exhibit

• Intention: cause discomfort


• Accusation by tone of voice

• Sarcastic tone, snarls

• Elevated volume

• Intended to ridicule, intimidate


• Ambiguous questions• Assuming questions• Multiple questions• Rapid fire questions• Repetition & badgering

Cross Examination Survival Tips

• Responding to Questions– A common acronym for responding to questions is

LUCAS:

• Listen to the question• Understand what the question is asking• Compose your answer• Answer the question• Stand by your answer


• Stay calm, do not display frustration• Do not get defensive• Do not enter into dialogue with your cross-examiner• If you do not understand the question, say so• If you do not know the answer, say so

• Beware of “suggestions”


• Objections to questions are to be left to the Prosecution• Consult your notes• Do not respond to an objected question• Take your time when you answer a question• Listen carefully to the questions being asked• Answer (only) the question


• Do not answer a question until the person has finished asking the (entire) question

• Do not speak at the same time as anyone else• Do not be afraid to pause and think,- take as long as you

want to answer a question• Keep your answers short and to the point• Remain respectful and courteous at all times


YOU control the cross-examination!

Provincial Offences ActPart I

• Certificate of Offence

• Written against a person and/or a corporation/business.

• Pertinent information that is taken from vendor permit, drivers licence and/or corporate profile.

• Maximum fine $500• Use designated short form wording.• 30 days to issue from date of offence.• 7 days to file with the court (includes weekends and

holidays).

Provincial Offences Act Part I

– Options for the defendant• Request a trial• Guilty plea with an explanation• Payment out of court• First attendance

– Failure to Respond• Providing the certificate is filled out correctly, the

defendant will be found guilty

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Provincial Offences ActPart III

• Information

• Repeat offenders and/or serious offences • Maximum fine $5000 unless an Act provides for a

greater fine (such as the BCA)• 6 months to issue the charge(s) from date of

offence. (Part one is 30 days)

Provincial Offences ActPart III

• Information

• You must prove everything on the information/charging document.

• “Sworn to” in front of a Justice of the Peace.

• Deliver Summons to defendant.• Affidavit of Service.• Swearing of service in front a Justice or

commissioner

Part III Information“Changes”

• To make sure you are using the correct form, (summons) check under the heading “Note to defendant” and look for an additional line -

• “depending on the offence of which you have been convicted, you could be sentenced to jail and a warrant issued for your arrest.”

Part III InformationChanges

• Affected forms are-• Part three information and summons snap

set.• Long form part three summons (Form

106).• Short Form part three summons (Form

104).• Dog Owners Liability Act summons

VIOLATIONMinor Offence Major Offence

$500.00 Max. Fine $5000.00 Max.

Fine or statutory limit

Serve Summons On Spot?

Set Fine Available?

Certificate of Offence Issued

Summons Served

Offence Notice Served

30 Days to Serve

YES NO

YES NO

Information Sworn &

Summons Issued

Information Sworn &

Summons Confirmed

6 Months to Swear

Pay Out of Court

GP before JP

Do Nothing

FTRrt

COURT DATE

PART I PART III

Defendant Wants to

Fight?

YES

NO

Further Notes And Documentation

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