Supreme Court to rule on police officer's right to have lawyer review notes

Families of slain men hope ruling will affect SIU investigations

Adrian Wyld/CP

Const. Graham Seguin responded to a call regarding an assault on a door-to-door salesman on June 22, 2009. The Ontario Provincial Police officer found Douglas Minty, 59, 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.

In both incidents, the officers’ supervisors told them not to make notes about what happened during 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 officers to often keep two sets of notes—one created before consultation 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.”

The Supreme Court of Canada has deliberated on whether an officer’s right to a lawyer includes receiving legal advice or assistance in note preparation. The ruling is expected to be released Thursday.

Whenever a serious injury or death involving police occurs, the Special Investigations Unit, Ontario’s independent civilian agency, investigates the incident. After looking into the deaths of Minty and Schaeffer, the SIU director at the time, Ian Scott, said he had no grounds to lay charges against the OPP officers involved, but he expressed grave concerns about the OPP’s role in the investigation. In a strongly worded report following the Schaeffer investigation, Scott wrote that the officers’ “note-writing process flies in the face” of what makes the notes reliable.

“I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are association-lawyer-approved notes,” Scott wrote. “Due to their lack of independence and contemporaneity, I cannot rely upon these notes . . . for the truth of their contents.”

Lawyers for the OPP officers have argued 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.

In 2011, Ontario’s appeal court noted that police officers are trained to provide independent, accurate and complete recollections of their activities as close to the investigation as possible. Overturning an earlier ruling by a Superior Court that characterized officers’ right to legal counsel as a purely private matter arising in the course of an officer’s employment, the appeal court ruled that the use of a lawyer to advise or assist in making notes is inconsistent with the officers’ overriding public duty in administering justice.

“Reliable independent and contemporaneous police-officer notes are central to the integrity of the administration of criminal justice,” said the court ruling. “Police officers’ notes provide the basis for laying charges and they provide Crown attorneys with a record upon which to base decisions regarding the prosecution of the case.”

In his ruling, Justice Robert Sharpe said the police officer’s notes are likely to be influenced by the lawyer’s advice instead of being an independent recollection of events.

“An officer eager to have a sound basis for a prosecution or a legally valid explanation for his or her own conduct would naturally emphasize and present the facts in accordance with the lawyer’s advice,” Sharpe said.

While comparing the original and lawyer-vetted notes of an OPP officer who was a witness to the Schaeffer shooting, Falconer noted that the original notes are full of times and details consistent with an officer’s typical memo book, but the second version of the notes reads more like a “legal narrative, complete with legal terminology.” Falconer also noted the absence of time entries in the lawyer-approved notes.

The officers’ lawyers have appealed to Canada’s top court to examine whether the appeal court erred in prescribing the scope of a lawyer’s involvement with regards to note-making. They have also challenged the appeal court’s assumption that a lawyer’s involvement could only negatively affect the reliability of the notes, arguing instead that legal consultation could actually lead to enhanced and more comprehensive notes.

Another issue before the Supreme Court is whether all the witness officers and the officers under investigation may retain the same lawyer, as happened in the Minty and Schaeffer cases. SIU regulations dictate that the officers must not communicate with each other regarding the incident until the completion of the SIU’s investigation. The victim’s families have argued that this criterion may not have been met, since the lawyer has a professional duty to share information among all the clients involved.

If the Supreme Court upholds the appeal court’s ruling, it is unlikely to have a direct effect on the Minty and Schaeffer cases. The officers involved probably won’t have to release their original notes, as none of the involved parties called for that. However, speaking on behalf of the Minty and Schaeffer families, Falconer said the families have been unable to have confidence in the SIU investigations because of the double set of notes, and the same lawyer representing witness officers and the officers under investigation.

They hope the ruling will affect future police practices, he said.

“What [the families] hope to accomplish is to make sure no other family goes through this. They hope to see a series of rules put in place designed and aimed at ensuring that investigations retain an element of integrity.”

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