Police must finish notes before seeing lawyer

Mike Novakowski
January 02, 2014
By Mike Novakowski
Police officers being investigated by Ontario's Special Investigation Unit (SIU) must prepare notes of an incident before speaking to a lawyer, Canada's highest court has ruled. In , police shot and killed two men in separate incidents after they failed to comply with commands to drop their knife and advanced on officers. During investigations into the incidents, senior officers told the officers not to write any notes until they had spoken to a lawyer.

Police officers being investigated by Ontario's Special Investigation Unit (SIU) must prepare notes of an incident before speaking to a lawyer, Canada's highest court has ruled.

In , police shot and killed two men in separate incidents after they failed to comply with commands to drop their knife and advanced on officers. During investigations into the incidents, senior officers told the officers not to write any notes until they had spoken to a lawyer.

Under a regulation enacted pursuant to Ontario's Police Services Act (PSA), both subject and witness officers are required to complete notes on an incident in accordance with their duty. However, the regulation also entitles police to consult legal counsel and have them present during SIU interviews. In both cases, the unit did not charge the officers.

The families of the two deceased brought an action in Ontario Superior Court seeking judicial interpretation of the PSA and its regulation governing the conduct of SIU investigations, including whether the legislative scheme permits officers to consult with counsel before completing their notes. The judge allowed a motion brought by the officers to strike the application on procedural grounds and, therefore, the issue wasn't litigated.

The families appealed and Ontario's highest court concluded that the regulations did not permit police to speak with a lawyer about the content of their notes before completing them. In its view, a lawyer's assistance in preparing notes would be inconsistent with the purpose of notes and the police duty to prepare them. Any legal advice would be geared towards the officer's own self-interest or the interests of colleagues rather than the public's interest.

Although the regulation did not entitle officers to speak with a lawyer in the preparation of their notes, the court did find officers were entitled to basic legal advice as to the nature of their rights and obligations in connection with the SIU investigations before completing notes.

The officers appealed to the supreme court, contending that their entitlement to counsel wasn't limited to mere basic legal advice. The SIU director also appealed, suggesting officers were not even entitled to basic legal advice before completing their notes. The families and the OPP commissioner, on the other hand, felt the appeal court got it right. The question for the high court was whether the regulation entitled officers involved in SIU investigations to speak with a lawyer before completing their notes and the scope, if any, of such an entitlement.

{The majority - no consultation allowed}

A six member majority made clear that this case addressed the scope of an entitlement to counsel flowing from a regulatory provision. It did not address <s. 10(b)> of the Charter.

Ordinary citizens generally may consult with counsel as and when they see fit but police officers are not acting in their capacity as ordinary citizens but in their professional capacity. "So long as police officers choose to wear the badge, they must comply with their duties and responsibilities under the regulation, even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens," said Justice Moldaver, speaking for the majority.

The regulation governs situations where officers have been involved in an incident resulting in serious injury or death and comprehensively set out an officer's rights and duties, including an entitlement to counsel. The majority concluded that they do not entitle officers to consult with counsel before they have completed their notes – either to get assistance in preparing them or to obtain "basic legal advice."

{Note-making}

The argument that the regulations provide a freestanding entitlement to consult with counsel at the note-making stage was rejected because it was inconsistent with (1) the dominant purpose of the legislative scheme, (2) the legislative intent behind the regulation and (3) an officer's duty to make notes.

  1. Legislative purpose. The civilian SIU and the legislative scheme was created to address the public's confidence in investigations into fatal police shootings. Having police investigate themselves bore the appearance of partiality and police protecting their own. Allowing officers to consult a lawyer at the note-making stage would add to this unacceptable appearance.

"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," said Moldaver.

"Public trust in the police is and always must be, of paramount concern. This concern requires that officers prepare their notes without the assistance of counsel. Consultations with counsel during the note-making stage are antithetical to the very purpose of the legislative scheme."

  1. Legislature's intent. The legislative history of the regulation demonstrated that the provisions were never meant to provide an entitlement to consult counsel at the note-making stage. The recommendations that led to the legislation also never mentioned the role of counsel at this stage. Just because the government knew that there was a practice of officers consulting counsel prior to preparing notes and did not amend the regulations to forbid it did not change the legislature's intent.

  2. Note-making duty. Allowing an officer to talk to a lawyer and obtain legal advice before preparing notes conflicts with the duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation. In the majority's view, expanding the right of consultation to the note-making stage would create the real risk that an officer's notes will shift – either overtly or subtly – away from their public duty to make accurate, detailed notes about what happened and move toward their private interest in justifying or explaining why it happened.

"The purpose of notes is not to explain or justify the facts, but simply to set them out," said Moldaver. "An officer's notes are not meant to provide a 'lawyer-enhanced' justification for what has occurred. They are simply meant to record an event, so that others – like the SIU director – can rely on them to determine what happened."

The court did note that police officers involved in a traumatic event may need to speak to someone before completing their notes. The regulation prevents officers from speaking to counsel before note preparation but not doctors, mental health professionals or uninvolved senior police officers. Once officers have completed their notes and filed them with their chief, they are free to talk to a lawyer.

In conclusion, the majority found that police officers are not permitted to have the assistance of counsel in preparing notes, nor entitled to receive basic legal advice as to the nature of their rights and duties prior to completing them. As a result, the SIU director's appeal was allowed while the officers' appeal was dismissed.

{The minority - basic legal advice allowed}

Three justices agreed that seeking legal advice which would influence the contents of notes was inconsistent with an officer's duty to complete independent, timely and comprehensive notes.

"Police officers should not be allowed to consult about the drafting of the notes themselves where such consultation affects the independence of notes," it held. "The contents and drafting of the notes should not be discussed with counsel. The drafting should not be directed or reviewed by counsel. The notes must remain the result of a police officer's independent account of the events."

However, the minority opined that access to a lawyer should not be limited altogether. Rather, in its view, police officers should be allowed to talk to counsel to obtain basic legal advice, not about the content of notes, but about the steps and procedures of a SIU investigation.

The minority would have upheld the Ontario appeal court's decision and dismissed all appeals.

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