This case concerns whether police officers, who are involved in fatal shootings of civilians, are permitted by the Police Services Act (the "Act") and
the Special Investigations Unit regulations (the "Regulation")
to seek the assistance of legal counsel before completing their notes on the
shootings.
In two independent fatal incidents, Douglas Minty and Levi Schaeffer
were shot by the police. Minty was shot dead by a Constable of the Ontario
Provincial Police ("OPP") after he ignored the officer's
command to drop a knife he was carrying. Schaeffer was shot and killed by an
Constable of the OPP when he also did not comply with a command to drop a
knife. In both cases, the officers were instructed by superiors to refrain from
making their police notes until they had spoken with legal counsel. The
families of the two deceased brought an application before the Superior Court of
Ontario seeking an interpretation of various provisions of the Act and "conduct
and duties of police officers" respecting investigations in the Regulation. The
relevant issue raised by the families for the purposes of the appeal was whether
the legislative scheme of the Act and the Regulation permitted the officers to
consult with counsel before completing their notes.
The application was
dismissed by the court on procedural grounds. The Ontario Court of Appeal dealt
with the matter on its merits and held that the Regulation did not permit police
officers to seek counsel's assistance to complete their notes. The Court of
Appeal found that the Regulation did enitle the officers to receive basic legal
advice as to their nature of their rights and obligations. The police officers
appealed that finding to the Supreme Court of Canada. The Director of the
Special Investigations Unit ("SIU") cross-appealed, arguing
that police officers are not entitled to legal advice, basic or otherwise, prior
to completing their notes.
The majority of the
Supreme Court of Canada dismissed the police officers' appeal and allowed the
cross-appeal of the SIU.
Justice Moldaver
wrote the decision of the majority of the court. He held that permitting police
officers to consult with counsel before preparing their notes is contrary to the
very transparency that the legislative scheme of the Act and the Regulation aims
to promote. Justice Moldaver held that police officers are entrusted by the
public with significant legal authority, including in some circumstances, the
authority and power to use deadly force against their fellow citizens. The
"indispensable" foundation for such authority is the community's trust in the
police. Such trust can be tested when a member of the community is killed by
the police. The SIU is charged with the task of independently and transparently
determining what happened when the community's trust in the police is at stake. It is imperative that the investigatory process be, and appear to be,
transparent.
The majority of the
court held that under the Act and the Regulation, a police officer who witnessed
or participated in an incident which is being investigated by the SIU is not
permitted to speak with a lawyer before preparing his or her notes concerning
the incident. While officers in their capacity as ordinary citizens may be free
at common law to consult with counsel, the court was considering them in
their professional capacity as police officers who are involved in SIU
investigations. In those circumstances, the Regulation governs. It
comprehensively sets out their rights and duties including their entitlement to
counsel. Justice Moldaver held that so long as police officers chose to wear a
badge they must comply with their duties and responsibilities under the
Regulation, even if this means at times having to forgo liberties they would
otherwise have enjoyed as ordinary citizens.
He held the
following:
1. Consultation
with legal counsel at the note-making stage is contrary to the dominant purpose
of the legislative scheme because it risks eroding the public confidence that the
SIU process is meant to foster. Allowing police to consult with counsel at the
note-making stage creates an appearance problem. A reasonable member of the
public would naturally question whether counsel's assistance at the note-making
stage was sought by officers in their self-interest to protect themselves and
their colleagues from the potential liability of an adverse SIU
investigation;
2. The
legislative history demonstrated that the Act was never intended to create a
free standing entitlement to consult with counsel that extended to the
note-making stage; and
3. Consulting
with counsel at the note-making stage impinges on the ability of police officers
to prepare accurate, detailed and comprehensive notes in accordance with their
duty under the Regulation. Police officers have a duty to prepare
accurate, detailed and comprehensive notes as soon as practicable after an
incident. Permitting officers to consult with counsel before preparing
their notes risks having the focus of the notes shift away from the officer's
public duty towards his or her private interest and justifying what has taken
place.
The case is indexed as Wood v. Schaeffer 2013 SCC 71.
Regards,
Blair
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