Monday, January 20, 2014

Police Involved in Fatal Shootings Not Entitled to Consult Counsel Before Making Notes

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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