Thursday, December 19, 2013

Wood v. Schaeffer: Watchdogs Special Investigations Unit and Ombudsman Ontario Vindicated in the Fight for Accountability of Police in Death Investigations

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on December 19, 2013

December 19, 2013 marks a significant day in the era of police accountability in the area of note - taking and responsibility of police officers to cooperate with the Special Investigations Unit (SIU) in investigations into serious injuries and death.

In Wood v. Schaeffer 2013 SCC 71 Police Officers facing SIU Ontario probes can no longer have lawyers help them write their notes.

Historical Overview on the Civilian Oversight Body
(1)   The Creation of the Special Investigations Unit
[35]                          Before the SIU was formed, incidents of serious injuries or deaths involving police officers were investigated internally by the police (A. Marin, Oversight Unseen:  Investigation into the Special Investigations Unit’s operational effectiveness and credibility (2008), at para. 23).  This changed in 1990 with the enactment of the Act, which created the SIU. 
[36]                          The creation of the SIU followed on the heels of a report released in 1989 by the Task Force on Race Relations and Policing (Report of the Race Relations and Policing Task Force (1989)).  The Task Force was commissioned by the provincial government after two black Ontarians were fatally shot by the police in 1988.  Its report contained a host of recommendations, one of which called for the creation of an “investigative team” comprised partially of civilians “to investigate police shootings” in the province (p. 150).  The Task Force recommended civilian participation in investigations of the police because, in its view, the practice of “police investigating the police” could not “satisfy the public demand for impartiality” and fostered “a serious deterioration in the public confidence” (p. 147).
[37]                          The Solicitor General, during legislative debate on the Act, confirmed that the creation of the SIU was a direct response to the recommendation of the Task Force.  He stated that the government had listened to the concerns raised by the Task Force and that the Act “addresses the concern, heard by the general public, of police investigating police” (Legislative Assembly of Ontario, Official Report of Debates (Hansard), 2nd Sess., 34th Parl., May 17, 1990, at p. 1318).
The importance of Police Officers notes

Paras. 62 - 68 deals with the duty to make notes in a very authoritative sense:

(a)   The Duty to Make Notes Generally
[62]                          Section 9(1) and (3) of the regulation require witness and subject officers to “complete in full the notes on the incident in accordance with [their] duty”.  The regulation does not define the duty to make notes.  Nor does the Act, which provides a non-exhaustive list of the “duties of a police officer” in s. 42, including, for example, preserving the peace, laying charges and participating in prosecutions, and performing the lawful duties that the chief of police assigns.
[63]                          Although it is common ground among the parties that the duties of a police officer include a duty to make notes on the events that transpire during the officer’s tour of duty, I recognize that neither side points to a definitive statement of this Court holding as much.[3] 
[64]                          However, reports by experienced jurists have concluded that such a duty exists.  For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G. A. Martin, observed that:
[T]he duty to make careful notes pertaining to an investigation is an important part of the investigator’s broader duty to ensure that those who commit crimes are held accountable for them.

. . .

[I]nadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution.  In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted.  [Emphasis added.]
(Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Committee”), at pp. 151 and 153)
[65]                          In another instance, the Honourable R. E. Salhany considered the significance of police notes in the course of a public inquiry into a death caused by an off-duty officer.  He explained the importance of notes in this way:
[Note-making] is not a burdensome task that police officers must reluctantly undertake because they were taught to do so at their police college. It is an integral part of a successful investigation and prosecution of an accused. It is as important as obtaining an incriminating statement, discovering incriminating exhibits or locating helpful witnesses. The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator.  [Emphasis added.]
(Report of the Taman Inquiry (2008), at p. 133)
[66]                          These conclusions, in my view, stand on firm ground.  The importance of police notes to the criminal justice system is obvious.  As Mr. Martin observed of properly-made notes:
The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate.  [p. 152]
[67]                          Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.  Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.
[68]                          None of this, of course, comes as news to police officers.  In this case, for example, OPP policy confirms the duty to make notes by requiring constables to record “concise, comprehensive particulars of each occurrence” during their tour of duty and to “make all original investigative notes . . . during an investigation or as soon as thereafter practicable” (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52).  More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78. 

Even prior to the Supreme Court of Canada decision, caselaw exist to show that the importance of contemporaneous notes is no small matter. As observed in R. v. Tang, 2011 ONCJ 525 citing R. v. Odgers, [2009], O.J. No. 2592

[52] In my view, the lack of proper note-taking by Constable Monahar makes his
testimony before me of no value or reliability.

[53] I agree with my colleague Justice Robert N. Fournier, in his view of the importance of note-taking, at paragraph 16 of his recent judgement in R. v. Odgers [2009] O.J. No. 2592:
[16] Generally speaking in the matter of police officers' notes - the law has indeed evolved over time. No longer are the notes of an officer a simple aide-mémoire generated for the sole purpose of that officer to assist in refreshing his/her memory. While the notebook continues to be an important investigative tool, it has also evolved into a fairly significant evidentiary document of sorts. Their use as a source of reference in the course of a trial can play a significant role in a court's assessment of the evidence. The quality of such record keeping can indeed impart far reaching consequences on occasion. It cannot be said that the adequacy of an officer's notes is of little consequence. Accordingly the courts have recognized that there is an inherent duty placed on officers, to prepare complete and accurate notes. In the normal course of disclosure, officers' notes invariably find their way into the hands of defence counsel, who will of course rely on them. This has become an even more significant reality, since the advent of Stinchcombe. It can be of particular concern in instances, when events or observations of obvious relevance and importance, are omitted or not adequately documented in the notebooks of officers. In such instances, the courts have demonstrated a heightened awareness of the evidentiary dangers, such deficient notes present to a trier of fact. When serious inadequacies are demonstrated, the credibility of police officers can in fact be discounted. It goes without saying that the absence of notes on an important factor is relevant to an officer's credibility.(9) As a result the courts have on occasion, been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer's notebook. I am aware of a large body of case law(10) on the subject. Ultimately however, this is often a matter of common sense and as usual each case, must be determined on its merits.

[54] In this proceeding, I have concluded that Constable Monahar’s testimony was evasive and contrived. It is not supported by his own notes, and his testimony lacks both credibility and reliability on this key question of his use of force in arresting Mr. Tang.

[55] I therefore, in this proceeding have concluded that Mr. Tang’s evidence, and that of the other witnesses called by the defence, is more reliable than that of the arresting officer, Constable Monahar, as to the sequence of events during the “take down” and arrest.

Justice Nordheimer observed in R. v. Schertzer, (2007) 161 C.R.R. (2d) 367 at paras. 14, 16, 21 (Ont. S.C.J.); rev’d on other grounds (2009) 248 C.C.C. (3d) 270 (C.A.), that:

…the obligation to make notes arises from the individual's employment as a police officer. At the risk of stating the obvious, no one is compelled to become a police officer. Persons make a free decision to become police officers and they do so with full knowledge of what that decision entails. Persons deciding to become police officers surely know that their actions as police officers will be subject to scrutiny in a variety of ways including by their superiors, by their fellow officers, by the public, by the media and by the courts. The training that individuals go through in order to become police officers fully informs those persons regarding their duties and obligations as such.

The notes … assist in the proper prosecution of criminal and other offences because they are intended to provide a reliable and timely record of the events underlying those offences.

It remains the fact that the principal purpose of requiring notes to be made is not for the purpose of investigating the actions of police officers. It is an incidental effect of the requirement to make notes that possible misconduct by an officer may be revealed.

All levels of Court have now spoken on this issue including the highest court in the land.
Why exclude lawyers from the note-taking process

In overturning the Court of Appeal decision pursuant to a Cross-Appeal from the Director of the SIU on the point of whether or not police officers can consult legal counsel the Court made it clear that in the performance of their professional responsibilites as peace officers, allowing counsel to provide even basic legal advise whould be inconsistent with the duties as set out in section 42 of the Police Services Act.

[67]                          Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.  Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.
[82]                          The Court of Appeal concluded that, while s. 7(1) of the regulation does not entitle officers to the assistance of counsel in the preparation of their notes, it does entitle them to “basic legal advice” about the nature of their rights and obligations under the Act and the regulation before they complete their notes.  That basic advice could include informing officers that they are required to complete their notes prior to the end of their tour of duty unless excused by the police chief, and that their notes will be submitted to the Chief of Police (para. 81).
[83]                          With respect, I disagree with this aspect of the Court of Appeal’s reasons.  In my view, the legislative history shows that s. 7(1) was not meant to create an entitlement to counsel before an officer has completed his or her notes.  Without in any way impugning the integrity of counsel or police officers, even the perfunctory consultation contemplated by the Court of Appeal is liable to cause an “appearances problem” similar to the one I have already identified.  Because the initial consultation is privileged, the public will have no way of knowing what was discussed.  As a result, the same threat to public confidence exists, even if on a somewhat diminished scale.
[84]                          A loss of public trust would seem a high price to pay for an initial consultation that, in my view, achieves no tangible benefit.  Counsel cannot discuss the facts surrounding the incident in any meaningful sense, if at all; nor can there be any discussion about the legal issues that flow from the facts.  Under the Court of Appeal’s model, counsel is limited to providing officers with basic information about their rights and obligations under the legislative scheme.  This information can easily be conveyed in ways that do not generate any appearance problem.  It can and should be included as part of every officer’s training.  If there is some need to refresh officers as to their responsibilities after an event triggering an SIU investigation, this refresher can be provided by a ranking officer or a generic card kept in an officer’s notebook.
[85]                          In the end, the basic legal advice contemplated by the Court of Appeal is essentially meaningless — and anything that might be meaningful sends counsel into a minefield.  In this regard, I agree with the Officers that the court’s proposal is unhelpful:
The officer is unable to ascertain what questions can properly be addressed to counsel and counsel is required to navigate through an obstacle course and provide little, if any, practical assistance to his client.  The permissible advice is, in effect, no advice at all.  The Court of Appeal for Ontario has relegated the role of counsel to a recitation of the most basic legislative requirements rather than providing meaningful legal assistance.  [Emphasis added; A.F., at para. 72.]
[86]                          In reaching the conclusion that officers are not permitted to consult with counsel before they have completed their notes, I acknowledge the fact that officers who have been involved in a traumatic incident may well feel the need to speak to someone before they complete their notes.  While the regulation prevents such officers from consulting with counsel, it does not prevent them from speaking to doctors, mental health professionals, or uninvolved senior police officers before they write their notes.  Moreover, the regulation empowers the chief of police to allow such officers more time to complete their notes (see s. 9(5)).
[87]                          I should also be clear about the scope of my conclusion.  Once officers have completed their notes and filed them with the chief of police, they are free to consult with counsel.  This would include consultation both before and after the interview with the SIU.  Consulting with counsel at that stage is consistent with the plain wording of s. 7(1) of the regulation and does not derogate from an officer’s duty or from the purpose of the legislative scheme.
The Significance of this decision
Its a super big win for civilian oversight of policing and lawful law enforcement.

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 131652013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn most recently litigated the racial profiling case of:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349
M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry.