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officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones — they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. 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. Due to their lack of independence and contemporaneity, I cannot rely upon these notes nor A/Sgt
Pullbrook's interview based upon them for the truth of their contents. I have a statutory responsibility to conduct independent investigations and decide whether a police officer probably committed a criminal offence. In this most serious case, I have no informational base I can rely upon. Because I cannot conclude what probably happened, I cannot form reasonable grounds that the subject officer in this matter committed a criminal offence.
219:, as required by provincial law, investigated and reported. In the Minty investigation, the SIU Director concluded that "the lethal force used was not excessive" in the circumstances, but indicated that all witness officers had been instructed not to write up their notes until they had spoken to counsel. In the Schaeffer investigation, the Director concluded that he could not form reasonable and probable grounds to believe that a criminal offence had been committed, as he could not rely on the information supplied by the police officers. He stated:
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officer not to retain a particular solicitor of his choosing? Do the applicants have a legal right to require a police officer to complete his notebook entries at any particular time and in any particular way? Do the applicants have a legal right to require the lawyer, Mr. McKay, to refuse a retainer? Do the applicants have a legal right to require a police force to report an incident to the SIU within a particular number or minutes or hours? In my view, they do not.
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Second, while relief in those terms was addressed during oral argument, I am not persuaded that relief in such broad terms would be justified. There is nothing explicit or implicit in the SIU Regulation that would deny a police officer who finds himself or herself in the stressful situation of having
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The SIU Director cross-appealed, arguing that, although the Court of Appeal was correct in holding that officers are not entitled to the assistance of counsel in the preparation of their notes, it erred in concluding that police officers are entitled to "basic legal advice" prior to completing their
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The officers argued that, no matter how s. 7(1) is interpreted, they were free at common law to consult with counsel in the preparation of their notes. The SCC disagreed, as the case dealt with officers not as ordinary citizens, but in their professional capacity as subjects in a SIU investigation,
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held that the application was justiciable, that the families had public interest standing, and that the Court of Appeal had jurisdiction to decide the substantive issues raised in the application without the need to remit the matter to the
Superior Court. However, he stated that a declaration could
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Police
Constable Kris Wood, Acting Sergeant Mark Pullbrook and Police Constable Graham Seguin (Appellants/Respondents on cross-appeal) v Ruth Schaeffer, Evelyn Minty, Diane Pinder and Ian Scott, Director of the Special Investigations Unit (Respondents/Appellants on cross-appeal) and Julian Fantino,
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The question can be viewed from this perspective: do the applicants have a right to restrain the police officer respondents from the acts said to be unlawful, of or to require them to conduct themselves in a different manner? For example, do the applicants have a legal right to require a police
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This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been "approved" by an lawyer who represented all of the involved
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First, the Notice of
Application asks for a declaration that officers not be permitted to have a lawyer review or vet their notes and that the SIU Regulation does not permit a supervising officer to authorize officers to refrain from preparing their notes until after the expiry of the police
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been involved in an incident attracting the attention of the SIU the right to some basic legal advice as to the nature of his or her rights and obligations in connection with the incident and the SIU investigation. The officer is entitled to legal advice on matters such as the following:
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I would not, however, grant a declaration absolutely precluding any and all consultation with a lawyer prior to the officer making his notes. For the following reasons, I would grant a declaration in terms that are quite similar to the position taken by the
Commissioner of the OPP.
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officer's shift to permit consultation with counsel. The Notice of
Application does not ask for a declaration precluding an officer from any consultation with a lawyer prior to the completion of the officer's notes.
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the officer will be required to answer questions from the SIU investigators; the officer will be entitled to consult counsel prior to the SIU interview and to have counsel present during the interview.
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the lawyer cannot advise the officer what to include in the notes other than that they should provide a full and honest record of the officer's recollection of the incident in the officer's own words;
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The s. 7(1) right to counsel must be read restrictively, in order not to interfere with the officers' duty under s. 9 to take notes, thus giving a harmonious interpretation to the regulatory scheme.
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There also continues to be controversy as to the lack of support given to the SIU by the provincial government in pursuing its role in this case and others, which has attracted criticism from the
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The SIU and the families welcomed it, but police unions such as the
Ontario Provincial Police Association claimed that police officers now have less protection than the rest of Canada.
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In dismissing the cross-appeal, Moldaver J held that even the perfunctory consultation contemplated by the Court of Appeal was liable to cause an "appearances problem," while
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The SCC unanimously agreed that the appeal should be dismissed, and by 6-3 allowed the cross-appeal. It accordingly issued the declaration sought in these terms:
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as to the nature of the police duty to cooperate with the SIU's investigations. The officers sought to have the application struck out on grounds of
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were content with the decision of the Court of Appeal and defended its correctness.
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shot and killed suspects (Minty and Schaeffer) in their investigations. Ontario's
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concerning procedural requirements involving incidents arising from
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The families of the deceased suspects initiated an action in the
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quoted at par. 23 (ONSC), par. 20 (ONCA) and par. 18 (SCC)
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In June 2009, in two separate incidents, officers of the
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the notes are to be submitted to the chief of police;
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646:Tim Alemenciak (19 December 2013).
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