Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote.

Wood v. Schaeffer 2013 SCC 71 – This was an appeal by Officers Wood, Pullbrook and Seguin from the Ontario Court of Appeal judgment which set aside a decision confirming their right to consult with counsel before their notes on incidents referred to the Special Investigations Unit (SIU) are prepared.

On June 22, 2009, Mr. Minty was shot to death by Cst. Seguin of the Ontario Provincial Police (“OPP”). That evening, Cst. Seguin had been dispatched to investigate an alleged assault committed by Mr. Minty on a door-to-door salesman. When Cst. Seguin arrived at the scene, he approached Mr. Minty. Mr. Minty walked quickly toward Cst. Seguin. He had a knife in his hand. Cst. Seguin instructed Mr. Minty to put down or drop his weapon. Mr. Minty ignored these commands and “charged at Cst Seguin with his arm extended and the knife pointing at the officer” (SIU Report, A.R., vol. III, at p. 661). Cst. Seguin shot Mr. Minty five times.  Cst. Seguin reported that shots had been fired and additional officers arrived at the scene. Sgt. Burton, Cst. Seguin’s senior officer, told all of the officers in the area that the SIU might consider them to be witnesses to the incident and instructed them not to make any further notes until they had spoken with counsel.  On October 14, 2009, Mr. Scott, the Director of the SIU (the “SIU Director”), provided his report on the incident to the Attorney General. In his report, the SIU Director found that Cst. Seguin “had a reasonable apprehension of imminent death or grievous bodily harm” from which he could not escape and concluded that “the lethal force used was not excessive” in the circumstances (SIU Report, A.R., vol. III, at p. 661).  The SIU Director noted in his report that he would be raising several issues of concern with the OPP Commissioner. Among them, the SIU Director included his concern that all witness officers had been instructed not to write up their notes until they had spoken to counsel.

On June 24, 2009, Mr. Schaeffer was shot and killed by Cst. Wood of the OPP. Cst. Wood and Acting Sgt. Pullbrook had traveled by boat to a rocky peninsula on Osnaburgh Lake to investigate a reported theft. When they arrived at the peninsula, the officers approached Mr. Schaeffer, questioned him, and attempted to detain him. According to the officers, Mr. Schaeffer physically resisted and pulled a knife out of his pocket. Both officers retreated as Mr. Schaeffer advanced towards them. Mr. Schaeffer did not comply with commands to drop the knife. At that point, Cst. Wood shot Mr. Schaeffer twice in the chest, killing him.  After the shooting, Det. Sgt. Wellock was assigned to attend the scene. Before leaving the detachment, she instructed another officer to tell Cst. Wood and Acting Sgt. Pullbrook not to communicate with each other and not to write any notes until they had spoken to counsel. Cst. Wood and Acting Sgt. Pullbrook retained the same lawyer as their counsel and spoke to him, separately, several hours after the shooting. Their lawyer advised both officers to refrain from completing their notes and to provide him with a draft set of notes for his review. Both officers completed their notebook entries two days after the shooting, on June 26, 2009, after counsel had reviewed their draft notes.  On September 25, 2009, the SIU Director provided his report on this incident to the Attorney General. He concluded that he could not form reasonable and probable grounds to believe that that Cst. Wood had committed a criminal offence because he could not “place sufficient reliance on the information provided by Cst Wood or Acting A/Sgt Pullbrook to decide what probably happened” (A.R., vol. III, at p. 516). The SIU Director expressed specific concern over the manner in which Cst. Wood and Acting Sgt. Pullbrook completed their notes. The SIU Director wrote:

This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been “approved” by an OPPA lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones — they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are association lawyer approved notes. Due to their lack of independence and contemporaneity, I cannot rely upon these notes nor A/Sgt Pullbrook’s interview based upon them for the truth of their contents.

I have a statutory responsibility to conduct independent investigations and decide whether a police officer probably committed a criminal offence. In this most serious case, I have no informational base I can rely upon. Because I cannot conclude what probably happened, I cannot form reasonable grounds that the subject officer in this matter committed a criminal offence. [Emphasis added; A.R., vol. III, at p. 517.]

The courts examined the relevant Police Services Act and Regulations in this matter. The proper interpretation of the regulation lay at the heart of this appeal. The entitlement to counsel under s. 7(1) and the duty to make notes under s. 9(1) and (3) are of particular importance. These provisions read as follows:

7. [Right to counsel] (1) Subject to subsection (2), every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.

9. [Notes on incident] (1) A witness officer shall complete in full the notes on the incident in accordance with his or her duty and … shall provide the notes to the chief of police within 24 hours after a request for the notes is made by the SIU.

(3) A subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU.

The Supreme Court of Canada ruled, in part:

Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote. When the community’s trust in the police was at stake, it was imperative that the investigatory process be, and appear to be, transparent. Manifestly, the legislature did not intend to provide officers with an entitlement to counsel that would undermine this transparency. The SIU’s governing Regulation hewed closely to the specific recommendations of those tasked with proposing reforms. Read in the full light of its history and context, it was apparent that the Regulation was not meant to afford officers an entitlement to consult with counsel before they completed their notes. Nor was such an entitlement consistent with an officer’s duties under the legislative scheme. Such an expansive understanding of the entitlement to counsel impinged on the ability of police officers to prepare accurate, detailed, and comprehensive notes in accordance with their duty. Permitting consultation with counsel before notes were prepared ran the risk that the focus of the notes would shift away from the officer’s public duty toward his or her private interest in justifying what had taken place. This shift would not be in accord with the officer’s duty. The public trust in the police was, and always had to be, of paramount concern. This concern required that officers prepare their notes without the assistance of counsel. Consultations with counsel during the note-making stage were antithetical to the very purpose of the legislative scheme. An officer’s notes were not meant to provide a “lawyer-enhanced” justification for what had occurred. They were simply meant to record an event, so that others, like the SIU Director, could rely on them to determine what happened. The Court of Appeal was correct in finding that police officers were not permitted to have the assistance of counsel in the preparation of their notes. However, the Court of Appeal erred in finding that police officers were entitled to receive basic legal advice as to the nature of their rights and duties prior to completing their notes. Even the perfunctory consultation contemplated by the Court of Appeal was liable to cause an “appearances problem”. Because the initial consultation was privileged, the public would have no way of knowing what was discussed. However, officers were free to consult with counsel after they have completed their notes and filed them with the chief of police.

Of interest, the SCC also made reference to several other decisions in which police note-taking was at issue.  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.]

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.]

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]

The SCC also made reference to the Ontario Police College, Basic Constable Training Program — Student Workbook (2008), at p. 2, since these incidents happened in Ontario:

Your notes are made from independent recollection and are your link to the past. They are there to assist you to gather the facts and details and to properly record events, observations and performances experienced during general duty functions and investigations … . [I]t is your responsibility to maintain an up-to-date record of what you have done, seen, heard, smelled, or touched during your tour of duty.

Leave a comment

Filed under APA Cadets, Recent Case Law, Worthy of a Review

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s