Supreme Court of Canada: Top Court Bars Lawyers from Coaching Police in Writing Notes for SIU Probe

Update: see previous posts – December 18, 2013 Toronto Police Services Board Seeks Legal Opinion on Legality of Carding, December 16, 2013 Toronto: Alok Mukherjee Keeps Toronto Police Chief’s SIU Investigations Secret, November 17, 2013 – Toronto: Police Sued Over Carding Practice (Racial Profiling) for $65 Million by Black Action Defence Committee

Nearly 125 letters sent by former SIU director Ian Scott to Blair allege that officers repeatedly violated their legal duty to co-operate by failing to notify the unit, destroying their notes or refusing to answer material questions. Blair never replied to the letters, which were obtained by the Star this week through a freedom of information request. The SIU director has no authority under his mandate to compel a response from the chief. Canada’s top court upholds a ruling that officers can’t have lawyers vet incident reports before they’re submitted to the Special Investigations Unit (SIU).

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Ruth Schaeffer and Evelyn Minty’s four-year legal battle ended in victory Thursday as Canada’s highest court ruled police officers under investigation are not permitted to have lawyers vet or assist with writing their notes before they’re submitted to the Special Investigations Unit.

Schaeffer’s schizophrenic son, Levi, 30, was shot and killed by an OPP officer in a secluded area near Pickle Lake, Ont., in 2009.

“If police have to write their own notes and are not assisted by a lawyer, and their notes are not enhanced by a lawyer, then the next mother of somebody who’s been shot by police will know what happened,” said Schaeffer. “I will never know what happened to my son.”

Schaeffer said getting to the Supreme Court of Canada decision, which she calls “a very significant and necessary first step in a process to fix a very broken system,” has cleaned out her life savings.

“It’s all gone. Every cent,” said Schaeffer. “It’s gone, and I believe that that’s the best spent money ever. I don’t regret that in the least.”

Minty’s 59-year-old son, Douglas Minty, was shot and killed by an OPP officer in 2009.

“It’s been a long road,” said Minty. “We won.”

In both cases, police were told to consult legal counsel before writing down their recollections of the events that led to the deaths of the men.

The SIU determined no charges should be laid but raised concern with the note-taking practices. In Schaeffer’s case, an officer waited two days before writing his notes.

The ruling, written by Supreme Court Justice Michael Moldaver on behalf of the majority, calls for notes to be written immediately after the incident and without discussion with a lawyer.

READ MORE:Wood v. Schaeffer, Supreme Court of Canada

“Permitting officers to consult with counsel before preparing their notes runs the risk that the focus of the notes will shift away from the officer’s public duty toward his or her private interest in justifying what has taken place. This shift would not be in accord with the officer’s duty,” Moldaver wrote.

Former SIU director Ian Scott called the move a huge step forward, noting that it vindicated a position he long fought for in the face of police opposition.

“It will guarantee that the notes that the SIU investigators rely upon, and ultimately the director to decide whether there’s criminality, will be more independent,” Scott said in an interview with the Star. “It’s an unprecedented day. You don’t get too many cases from the Supreme Court of Canada talking about civilian oversight and how to facilitate it.”

The current director of the SIU, Tony Loparco, said the agency welcomes the decision.

“It will without question contribute, as the Court suggests, ‘to maintaining public confidence in the police and the justice system as a whole,’” he said in a statement on the agency’s website.

In November 2011, Ontario’s top court unanimously sided with the families of Minty and Schaeffer, but police lawyers appealed, triggering the latest hearing at the Supreme Court.

Julian Falconer, lawyer for the families, called the decision a “historic win.”

“What the Supreme Court of Canada has done is to actually protect confidence in policing,” said Falconer. “This, above all, is a proud legacy in respect of the deaths of both Levi Schaeffer and Doug Minty.”

Jim Christie, president of the Ontario Provincial Police Association, said the move infringes on the right of police to access legal counsel.

“The highest court in the land has said that police officers categorically have less of a Charter protection than the rest of Canada. I’m not happy, with that but I’m glad for clarity,” Christie said. “They’re the law of the land, and we absolutely support it and we abide by it.”

Schaeffer said that throughout the case the families have been conscious of rights of police to legal counsel.

“As far as I’m concerned, they have the same rights that we do. But they also have extraordinary powers. They have the power of life and death over the citizenry in Ontario. Because of that they need to write their notes independently and contemporaneously, before the end of their shift, and then have a right to counsel,” she said.

Doug Minty’s brother, John Minty, agreed, noting that police perform a role that requires accountability.

“It’s a sacred trust as an institution. Your job is to look after the betterment of the people — and in this case, the people of Ontario,” he said. “This is a step in making them accountable, to act the way they should and to enhance the safety of everyone.”

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