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Counsel can’t vet police notes: SCC

|Written By David Dias

Ontario’s Special Investigations Unit scored a huge victory in today’s ruling by the Supreme Court of Canada.

Andre Marin
Former Ontario SIU chief André Marin says this ruling plugs a big hole.

In Wood v. Schaeffer, the SCC sided 6-3 with the SIU and families of civilians killed in police shootings. The ruling means police officers under investigation will not be able to consult a lawyer prior to preparing notes on the incident.

The case stems from two shootings where civilians were killed by police. On both occasions, police officers were instructed by their superior officers to wait until they had spoken to counsel before taking notes (which could be admissible in court).

The families of the deceased challenged the officers’ right to counsel, applying to the Superior Court of Ontario for interpretation of the Police Services Act regarding access to counsel.

That application was originally dismissed, but then dealt with at the Ontario Court of Appeal. The appeal court issued a decision that would prevent lawyers from providing strategic counsel, but would allow for more basic legal advice.

Lawyers for the police appealed to the Supreme Court, arguing the limits on legal advice were too restrictive. Lawyers for the SIU then executed a bold counter: they cross-appealed, arguing that any legal counsel during note-taking — basic or otherwise — was inconsistent with the purpose of the police regulations.

The Supreme Court agreed, dismissing the police officers’ appeal and allowing the SIU’s appeal—prohibiting police officers under investigation from meeting with a lawyer prior to submitting notes.

Justice Michael Moldaver, writing for the majority, was strident in his reasoning: “Permitting police officers to consult with counsel before their notes are prepared is an anathema to the very transparency that the legislative scheme aims to promote.

“ . . . a reasonable member of the public would naturally question whether counsel’s assistance at the note-making stage is sought by officers to help them fulfill their duties as police officers, or if it is instead sought, in their self-interest, to protect themselves and their colleagues from the potential liability of an adverse SIU investigation.”

Justices Louis Lebel, Thomas Cromwell, and Morris Fish dissented on the SIU’s cross-appeal. They suggest that a “plain wording” interpretation of s. 7(1) of the Police Services Act entitles police officers under questioning to basic legal advice.

“This brief, informative conversation 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.”

The ruling, however, denies even this general level of advice: “. . . even the perfunctory consultation contemplated by the Court of Appeal is liable to cause the same threat to public confidence. . . . A loss of public trust would seem a high price to pay for an initial consultation. . . .”

André Marin, Ombudsman of Ontario, served as the director of Ontario’s SIU from 1996 to 1998. Marin is ecstatic about the decision, saying it plugs a giant hole that has plagued the SIU since its formation 23 years ago.

“We had an absurd situation where a lawyer could ghost-write the notes. They would take statements around the witness officer and then give advice to the subject officer. . . . And then you would have the lawyer redacting, deciding what would go in the notes and what wouldn’t go in the notes. It corrupted the evidence from the get-go.”

Marin says police unions have fought hard to keep their members’ right to counsel during questioning, but they overreached this time. Instead of just accepting what the appeal court had granted, the police unions took a huge risk and appealed, and lost big time.

“They challenged it and the SIU said, ‘Fine, we have nothing to lose. We’ll cross-appeal.”

Marin is particularly thrilled for the families involved.

“Nobody was prepared to go on a limb for this family. So that’s why I’m happy today.”

Brian Greenspan, counsel for the appellants, declined comment, noting his client would be issuing a statement shortly. Julian Falconer, counsel for the respondents, was unavailable for comment.


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