Police officers can't seek legal advice to prepare notes: Supreme Court

Judges condemn common practice

Surrey’s infamous dead-end road

Nick Procaylo/PNG

The widespread police practice of consulting with a lawyer while making notes of incidents which are under investigation in Ontario is “an anathema to the very transparency” of the justice system, the Supreme Court ruled today.

Canada’s highest court unanimously condemned the practice and ruled that police officers can no longer receive legal advice while preparing notes.

Ontario’s appeal court had earlier ruled that police officers could consult a lawyer when they are under investigation and before they make notes, but the lawyer could only provide basic legal advice on the officers’ rights during the course of the investigation. The lawyer cannot assist with the actual note-making process, the appeal court ruled. Six of the nine Supreme Court judges took this decision one step further: police officers may not speak to a lawyer until the completion of their notes.

The ruling offers clarity to the regulations that govern the Ontario’s Special Investigations Unit, an arms-length civilian agency which investigates violent incidents involving police officers.

The decision was spurred by the 2009 fatal shootings of Douglas Minty and Levi Schaeffer, in two separate incidents, at the hands of the Ontario Provincial Police. In both incidents, the officers’ supervisors told them not to make notes about the shootings until they had spoken to a lawyer. It’s a practice that prominent civil-rights lawyer Julian Falconer says is “widespread” and it has led to officers often keeping two sets of notes—one created before speaking with their lawyers and one after. Falconer, who represents both the Minty and Schaeffer families, has argued that because the first draft of notes is kept confidential, the second and final draft, which could be used in investigations and court proceedings, “creates a perception of deception.”

Writing on behalf of six concurring judges at the Supreme Court, Justice Michael Moldaver said that consulting a lawyer at the note-making stage impinges on the officer’s ability to make accurate, detailed and comprehensive notes, and erodes public confidence.

“When the community’s trust in the police is at stake, it is imperative that the investigatory process be—and appear to be—transparent,” Moldaver said.

The concurring judges wrote that “a reasonable member of the public would naturally question” whether seeking a lawyer is done in an officer’s self-interest as protection from liability, and that the process creates an “appearances problem.”

“Permitting officers to consult with counsel before preparing their notes runs the risk that the focus of the notes will shift away from the officer’s public duty toward his or her private interest in justifying what has taken place,” Moldaver said. He adds that the loss of public trust is too big a price to pay for any basic advice that a lawyer could provide, which is unrelated to the note-making process and before the completion of notes.

If officers have been involved in a traumatic incident, they may still consult with senior police officers who are not involved, doctors and mental health professionals, Moldaver said.

Three dissenting judges said that while lawyers should not assist with note-making, there is no need to completely eliminate police officers’ freedom to seek legal advice whenever they wish. An initial conversation with a lawyer who can advise the officer on his or her rights during the course of an investigation “might help to remind an officer of his or her duties in the circumstances and put the officer at ease after having experienced a potentially traumatic incident,” wrote Justices Louis LeBel and Thomas Cromwell.

Police officers’ notes may be used as evidence in court proceedings or disciplinary hearings.

Lawyers for the OPP officers had argued to the Supreme Court that police officers have a legal right to counsel in SIU investigations “as, and when, they see fit” to protect themselves against criminal proceedings or disciplinary consequences. Police officers who are witnesses in these incidents must consent to interviews with the SIU. Unlike civilians, they do not have a right to remain silent in investigations and, therefore, they have the right to legal counsel.

Following the ruling, Dan Axford, interim president of the Police Association of Ontario, said the high court’s decision is a difficult one to digest, but one that is respected.

“The courts have basically said that by putting on a uniform, you are forgoing the rights that all other Canadians enjoy as far as access to counsel [when] investigated for a criminal offence,” Axford said. “We take very seriously the obligation that we have to the public and the need for transparency and the need for oversight when there is force used in our occupation. The issue is by taking the oath of office, by putting on a uniform, you’re in effect giving up that Charter right, and that’s what makes it difficult.”

Falconer said the ruling is a victory for the families, but the cycle of police using guns on emotionally disturbed people must be broken because of the “profound impact” it has on society.

“For that their price, their responsibility, is to be undeniably and absolutely accountable and it is sad that these families had to bear the burden, the task, of getting this job done. It shouldn’t have fallen to them,” Falconer said.

Douglas Minty, 59, was shot after an OPP officer responded to a call regarding an assault on a door-to-door salesman on June 22, 2009. Const. Graham Seguin found Minty armed with a knife at his home in Elmvale, Ont., about 130 km north of Toronto. When Minty, a developmentally disabled man, refused to drop the knife, Seguin fired five shots, killing him instantly.

Two days later, two OPP officers were investigating a boat theft in an unrelated incident at Pickle Lake, an eight-hour drive north of Thunder Bay, Ont. When they apprehended their suspect, Levi Schaeffer, a 30-year-old schizophrenic camping alone, they realized he had a knife. Feeling threatened, Const. Kris Wood fired his gun twice, fatally wounding Schaeffer.

The families of the slain men spent the past four years arguing that having a lawyer approve the notes that end up in police memo books is unacceptable. Ruth Schaeffer said she has spent her life savings dealing with the circumstances surrounding her son’s death.

“It’s a significant and necessary step on the way to ensuring accountability from the public servants in Ontario who have the most extraordinary powers,” she said of the ruling.

Minty’s mother, Evelyn, said it has been a long, hard road, but she and her family did it for Doug and for “future families who need honest reports wrote up by the police.” There isn’t a day that goes by that she doesn’t think of her son, she said.

“I must admit I’ve had help from my family,” Minty said, choking up. “I’ve had help from my friends and when the going gets bad, I cry. Nobody knows. Sometimes at night in the dark of night.”

With files from The Canadian Press

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