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Police officers have a duty to prepare accurate notes, says SCC

December 19, 2013

Supreme Court clarifies the duties of police officers who are under investigation by the Special Investigations Unit

The Supreme Court of Canada has held that police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as possible after an investigation or incident, and cannot confer with legal counsel before preparing their notes.

Background

In the summer of 2009, two people were killed by police officers in separate incidents. The officers who were investigated by the Special Investigations Unit (SIU), as well as the officers who had witnessed the incidents, were instructed by their superiors not to make notes until they had spoken to a lawyer. Both the witnesses and the subject officers were represented by the same lawyer, who had a legal obligation to share information between them. In one case, the officers were instructed to prepare a first draft of their notes as a communication to counsel, who then reviewed the notes. The SIU was then denied access to these notes on the basis they were privileged.

The SIU had serious concerns about the reliability notes, questioning whether they had been made independently and at the time of the incidents.  In one case, there were no other witnesses. Because of the involvement of the lawyer in the note-taking process, the SIU could not rely on the notes and was consequently unable to determine whether a criminal act had been committed.

The families of the people who had been killed brought an application seeking to have the court interpret the regulatory regime with respect to the rights and duties of police officers involved in SIU investigations. The application was dismissed, but the Court of Appeal granted an appeal.

The Court of Appeal held that police officers could not have a lawyer review their notes or assist them in the preparation of their notes. It also held that supervising officers could not authorize subject and witness officers to delay preparing their notes pending a consultation with counsel. However, the Court also held that police officers could obtain legal advice concerning the nature of their rights and duties with respect to SIU investigations, so long as it did not delay the completion of their notes before the end of their shift.

The police officers appealed to the Supreme Court of Canada. The SIU cross-appealed the Court of Appeal’s compromise allowing for limited consultation with counsel prior to the completion of an officer’s notes.

The Supreme Court’s decision

The Supreme Court unanimously held that police officers are not entitled to have counsel assist them in the preparation of their notes. In addition, by a 6 to 3 majority, the Court allowed the SIU’s cross-appeal, holding that officers are not permitted to speak to counsel at all until their notes are completed and their notebooks turned in to the Chief of Police. Once the notebooks were turned over to the Chief, only those belonging to witness officers would be provided to the SIU.

The Court recognized that the purpose of the SIU was to have “an independent and transparent investigative body for the purpose of maintaining public confidence in the police and the justice system as a whole.” It held that “consultation with counsel at the note-making stage is antithetical to the dominant purpose of the legislative scheme because it risks eroding the public confidence that the SIU process was meant to foster.”

The Court also recognized – for the first time – that “police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.”

The Court rejected the suggestion that either the police or counsel would intentionally use consultations to manipulate the content of the officer’s notes. However, it recognized that reasonable members of the public would be concerned that consultations would undermine an officer’s public duty as a constable and prioritize their private interests as participants in an SIU investigation. Given the importance of maintaining public confidence in the SIU process, such consultations would not be consistent with the SIU Regulation.

The majority of the Court went further and overturned the Court of Appeal’s decision permitting counsel to provide officers with “basic legal advice” about their rights and obligations during an SIU investigation. In the majority’s view, even this form of consultation would give rise to concerns by members of the public, and undermine confidence in the investigation of use of force by police officers. However it held that, “[o]nce officers have completed their notes and filed them with the chief of police, they are free to consult with counsel.”

Click here to read the decision.

Marlys Edwardh, Daniel Sheppard and Kelly Doctor represented Ian Scott, the Director of the Special Investigations Unit.

Lawyers

Kelly Doctor, Daniel Sheppard

Practice Areas

Appeals & Judicial Review, Criminal Law