News
Concerns persist about police note taking when officers use lethal force

May 03 2010

TORONTO – Senior investigators are concerned that police involved in using lethal force are being “coached” or are tampering with evidence after such incidents, new court documents reveal.

The documents and transcripts, in the case of two unrelated killings by police, raise concerns about the ability of Ontario’s Special Investigations Unit to determine whether the killings were justified.

The concerns by SIU investigators centre on delays by police in notifying the unit after a shooting and possible contamination of the scene and witness accounts.

Of key concern is whether the notes of officers are accurate and reliable given that police involved are first submitting draft accounts to a union lawyer, and only then turning over a version to civilian investigators.

“Are we into an area where the police officers are coached?” said Denis O’Neill, a longtime investigator with the SIU, according to examination documents filed in the case.

“It’s not the right thing to do, and that’s what I believe.”

Accurate and reliable officers’ notes are critical because they are “the best vehicle to get at the truth,” O’Neill testified, according to a transcript obtained by The Canadian Press.

During separate confrontations in June 2009, provincial police shot dead two mentally disabled men, Douglas Minty and Levi Schaeffer.

Families of the two men want Ontario Superior Court to declare that some police practices following such incidents may be illegal and damaging to the integrity of the system.

A hearing on the merits of the families’ application – which contains the allegations not proven in court – is expected to take place next week.

Police lawyers have emphatically defended the handling of such cases.

Ontario law mandates the civilian SIU probe potential criminal wrongdoing when police are involved in causing death or serious injury.

In Minty’s case, the SIU was notified almost 90 minutes after a police constable pumped five bullets into him during a tense confrontation – and only after the police association was called and a representative went to the scene, documents show.

In addition, police drove two civilian witnesses to the detachment in a vehicle before notifying the SIU, and the incident was discussed during the ride, said Angela Mercer, lead SIU investigator.

“My main concern was tampering of evidence,” said Mercer, according to the transcripts.

“They should have called us right away. It just delayed the investigation in the whole, and it gave enough time for the police to organize what they were going to do.”

O’Neill said he believed the practice of having a single lawyer act for various officers involved in a shooting was “widespread,” while Mercer said it appeared no one in police leadership had ever addressed the various concerns.

In a public statement last year, the director of the special investigations unit, Ian Scott, blasted the note-writing process that flowed from Schaeffer’s death as unreliable.

He said confidential drafts of the notes were first “approved” by one union lawyer who represented all the officers involved.

“The notes do not represent an independent recitation of the material events,” Scott wrote, saying he was unable to determine whether the officer who pulled the
trigger had committed any crime.

Scott also sounded the alarm last October in a letter filed as part of the proceedings to the commissioner of the Ontario Provincial Police, Julian Fantino.

Fantino was dismissive in his response.

“Your position as director of the SIU grants you no authority over how police notes are prepared,” Fantino wrote, according to the documents.

The police union and its lawyers have staunchly defended the approach, saying the notes given the SIU were a “very accurate depiction” of events. They denounced any suggestion of collusion as “preposterous.”

One lawyer for the officers said any suggestion of wrongdoing by the officers in contacting legal counsel “would suggest that every citizen in Canada is wrong in communicating with legal counsel when they are under investigation.”

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