Police notes can’t be vetted by lawyers, Supreme Court rules

Police notes can’t be vetted by lawyers, Supreme Court rules by Sean Fine, December 19, 2013, The Globe and Mail
Police being investigated after a shooting should not be allowed to consult with a lawyer before preparing their notes, the Supreme Court of Canada has ruled, in a strong rebuke to the practices of some Ontario officers. “Police officers are entrusted by the communities they serve with significant legal authority, including, in some circumstances, the power to use deadly force against their fellow citizens,” Justice Michael Moldaver wrote. “The indispensable foundation for such authority is the community’s steadfast trust in the police….When the community’s trust in the police is at stake, it is imperative that the investigatory process be — and appear to be — transparent.”

Justice Moldaver went on to say that police sometimes have to relinquish their own liberties in the course of their duties. “So long as police officers choose to wear the badge, they must comply with their duties and responsibilities . . . even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens.” The ruling went further than the Ontario Court of Appeal did two years ago, when it said that police officers could consult with a lawyer before they prepared their notes, but that the lawyer could not vet those notes. The case before the Supreme Court involved fatal shootings in two separate incidents in 2009 involving officers with the Ontario Provincial Police. One killed Douglas Minty, a 59-year-old developmentally disabled man armed with a knife. Another killed Levi Schaeffer, a 32-year-old man with psychiatric problems, also armed with a knife. The police were being investigated by Ontario’s Special Investigations Unit, a civilian body. The families of the dead men brought a court challenge after police supervisors told the officers who did the shootings, and those who witnessed them, to have a lawyer help them in the preparation of their notes. The lawyers who assisted had a professional duty to share the notes with all the officers who were clients.

The families and the SIU’s director argued that the officers had to prepare their notes immediately and before talking to a lawyer. The officers involved, and associations representing Ontario police officers and police chiefs, argued that they had the right under the SIU’s regulations to consult with a lawyer before preparing their notes. The OPP said that officers could talk to a lawyer but that lawyers could not vet the notes and that the officers could not share the notes. The Ontario Court of Appeal ruled that lawyers could be consulted, but only within limits. The lawyers could not offer advice that might influence what the officers wrote in their notes. And the officers had to complete the notes by the end of their shift. “Reliable, independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice,” the appeal court said two years ago. The concern with a lawyer vetting police notes, it said, is not that the lawyers would do anything improper, but that “seeking legal advice is geared to the officer’s own self-interest, or the interests of fellow officers, rather than the officer’s overriding public duty….a lawyer’s involvement undermines the fundamental nature and purpose of a police officer’s notes.” Police notes are used to provide the basis for laying charges, for helping Crown attorneys make decisions on the prosecution of a case, for disclosure to any accused individuals, and to aid police when they testify at a trial. [Emphasis added]

Supreme Court rules against police practice in note-taking case by The Canadian Press, December 19, 2013, Calgary Herald
The Supreme Court of Canada has ruled that police officers under investigation by a civilian watchdog are not allowed to have a lawyer help them prepare their notes. The high court made the ruling by a 6-3 margin in a case that pitted officers against the families of two men shot dead by Ontario’s provincial police in separate incidents in 2009. The ruling offers clarity to the regulations that govern the province’s Special Investigations Unit, which investigates violent incidents involving police officers. Justice Michael Moldaver, writing for the majority, said public trust in the police is of “paramount” concern. “This concern requires that officers prepare their notes without the assistance of counsel,” the ruling said. “Consultations with counsel during the note-making stage are antithetical to the very purpose of the legislative scheme — and for that reason, they must be rejected.” The families argued before the Supreme Court that having a lawyer approve the notes that end up in police memo books is unacceptable. They also said that allowing a single lawyer to act for several officers involved in an incident undermines rules against collusion. Police argued they have the right to talk to a lawyer of their choosing before finalizing their notes. [Emphasis added]

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