R v Persaud

R. v. Persaud

[2011] O.J. No. 3312
Ontario Court of Justice — M.F. Woolcott J. | January 13, 2011

Background

Danny Davindra Persaud was convicted of speeding contrary to section 128 of the Highway Traffic Act after a trial before Justice of the Peace Legate-Exon. Ontario Provincial Police Constable Egberts had set up a radar trap at a pre-determined location, using what he called a "template" — a pre-written form that outlined the basic elements of a speeding investigation.

The template contained standard language like "MV appeared to be above posted speed limit" that was written before the officer ever arrived at the location or observed any vehicles. Egberts would then fill in the specific details — driver's name, actual speeds recorded, location details — as he conducted his enforcement. Persaud appealed his conviction, arguing that the Justice of the Peace shouldn't have relied on evidence that was partly created before the investigation even began.

Issues

1. Can a police officer rely on pre-written templates when giving evidence about a specific traffic stop?
2. Does the use of template notes undermine the reliability of an officer's testimony?

The Template Evidence Controversy

Persaud's defence relied heavily on R. v. Murphy, a 2004 case where Justice Downie found that an officer's evidence was unreliable because it appeared to be nothing more than reading from template notes filled with indecipherable acronyms. In Murphy, the court found the prosecution's case was "not founded on original evidence."

However, Justice Woolcott distinguished this case from Murphy on several key points. First, Constable Egberts had testified that he maintained an independent recollection of the events, beyond what was written in his notes. Second, the template was used properly — as memory-refreshing notes rather than as a substitute for actual observation and recollection. Third, the officer was extensively cross-examined without limitation, and the notes provided adequate disclosure.

The court explained that using templates is actually prudent police work: "each day the officer is going to get into a particular cruiser; he is going to take a particular radar device; he is going to go to a particular location" — the template covers the routine elements that are identical in every case, while the officer fills in the specific details that make each stop unique. The law allows witnesses to use properly qualified notes to refresh their memory, and contemporaneity in note-making "only goes to weight," not admissibility.

Key Takeaway

Pre-written police templates don't automatically invalidate traffic enforcement evidence if the officer has independent recollection and can be properly cross-examined.

Self-represented defendants should focus their cross-examination on whether the officer actually remembers the specific incident, not just whether they used standardized forms. The key is whether the evidence is "canned" (completely template-based with no independent recollection) or whether it's a legitimate memory aid for routine police work.