Schaeffer v Wood – Court of Appeal rules on whether officers involved in an SIU incident can consult a lawyer on their notes – a must read for all police officers

 

On November 15, 2011, the Court of Appeal released Schaeffer v Wood, 2011 ONCA 716.  The end result of this ruling is a declaration that: “Police officers involved in an SIU investigation do not enjoy the right to have a lawyer vet their notes or to assist them in the preparation of their notes. Police officers do, however, have the right to obtain legal advice as to the nature of their rights and duties with respect to SIU investigations, provided that obtaining such advice does not impede the completion of their notes before the end of their tour of duty.” (para 4, emphasis added)

 

What happens when an officer is involved in an SIU investigation

I will discuss this ruling in more detail below, but first I will outline what happens if an officer is involved in an SIU investigation.  This is determined by O/Reg. 267/10, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit (referred to herein as the Regulation), made under the PSA.  Police officers should know this Regulation inside and out, as it forms the legal rights and duties referred to by the Court of Appeal above.  Specifically:

 

1)      All officers involved will be segregated from each other (s. 6(1)).

2)      Officers involved in an incident will not allowed to communicate, directly or indirectly, with each other (s. 6(2)).

3)      Witness officers must complete their notes on the incident, in accordance with their duty (s. 9(1)), as must subject officers (s. 9(3)).

4)      Witness officers notes shall be provided to the SIU (s. 9(1)), subject officer’s notes shall not (s. 9(3)).

5)      Both witness and subject officers shall complete their notes before the end of their shift, except where excused by the chief of police (s. 9(5), added August 1, 2011).

6)      Witness officers shall participate in an interview with the SIU and answer all questions, within 24 hours, if asked to do so (s. 8(1)).

 

The issues arising from this case

In my view, there are two important issues for police officer arising from this case.

 

1) The first is whether officers are entitled to consult with a lawyer on the completion of their notes, which, as I indicated above, they are not.

2) The second is when officers are required to complete their notes, which, as indicated in s. 9(5) must be before the end of their shift, subject to the discretion of the chief of police.

 

I will discuss both in more detail below.

 

Issue 1: Whether officers involved in an SIU investigation can consult with a lawyer on the completion of their notes

Prior to this case, the belief that officer’s had the right to consult with a lawyer prior to completing their notes arose from s. 7(1) of the Regulation, which states that “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.” (emphasis added)  Police officers took the position that this extended to consulting with a lawyer on their notes prior to completing them.  The practice was to prepare an initial draft for the lawyer to review and then use their feedback to prepare the final notes in their notebook.  The initial draft was subject to lawyer-client privilege and would not be shared with the SIU.

 

In Schaeffer v Wood, that practice caused the SIU to complain that the final draft of the notes were not reliable, as they were neither independent, nor contemporaneous.  The Court of Appeal acknowledged that completing notes “in accordance with [the officer’s] duty”, per s. 9(1) of the Regulation, does mean “independent” and “contemporaneous” (para 67) and that this requirement is central to the integrity of the administration of criminal justice (para 69).  They went on to point out that this is consistent with service policy (in this case the OPP’s policy on note taking) and also with the instruction officers receive at the Ontario Police College (the Basic Constable Training Program Student Workbook on Evidence (2008) states that: “[n]otes must contain your independent recollections providing an accurate and complete account of police observations and activities,” and that, “entries are to be made during or as close to the investigation as possible.”) (para 68).  All of this is in recognition of the fact that notes are primarily for the officer’s own independent recollection at a later date (para 70).

 

The Court of Appeal stated that “by conferring upon police officers the right to consult with legal counsel in connection with SIU investigations, s. 7(1) significantly enhances the rights of both witness and subject officers beyond the rights enjoyed by ordinary citizens in relation to police investigations.” (para 61)  They are referring here to the fact that other people under investigation obviously do not have a statutory right to consult with a lawyer regarding the investigation.  (Obviously once they are arrested they do have that right under the Charter, but this does not apply while they are simply being investigated.)

 

The court’s concern with extending this right under s. 7(1) to the practice of consulting a lawyer on the completion of the officers notes was that lawyers being consulted would be professionally obligated to provide the officer with information about the elements of offences they might be charged with any possible defences, and that the officer, when writing their notes after receiving this information, would understandably (either consciously or unconsciously) tailor their notes to reflect their own self interest.  The court pointed out that this violates the requirement that notes be both independent and contemporaneous (since a second person (the lawyer) is consulted and that consultation is unlikely to happen quickly), and that it pits the officer’s own self-interest or the interests of fellow officers against the officer’s public duty (paras 72-74), and this is inextricably linked to the issue of reliability of the notes.

 

This is ultimately what the Court of Appeal hangs their hat on in deciding that s. 7(1) does not mean that officers are entitled to consult with a lawyer in the preparation of their notes.  However, they go on to say that this just means that officers are not entitled to consult a lawyer on their notes, it does not mean that they are not entitled to consult a lawyer at all, prior to the completion of their notes.  The court said that officer are entitled to basic legal advice on their rights and obligations (para 81).  But the court suggested this is advice which could easily be obtained by a telephone call to a lawyer, and if this advice is not readily available, it is not an excuse for the Chief of Police to extend the time for the officer to complete their notes beyond the end of their shift (para 82).

 

This sounds suspiciously like the accused’s right to their brief phone call to duty counsel, but whereas, if the accused is unable to contact duty counsel, the police are obligated to hold off on pursuing any questioning of the accused, the officer apparently enjoys no such reprieve.  However, when viewed in light of the contemporanity and independence, the principles which the common law has consistently held to give rise to the reliability of officers notes (allowing them to use them as an aide-mémoire at a later date), it is not hard to understand how the Court of Appeal came to the conclusion it did on this issue.

 

Issue 2: When the officer is required to complete their notes

 

According to s. 9(1) and 9(3) of the Regulation, witness and subject officers are required to complete their notes “in accordance with [their] duty”, which, as stated above, implies that they be contemporaneous with the incident.  This is nothing new to officers who are used to testifying, when qualifying their notes in court, that they were made “at the time of the incident or shortly thereafter”.  However, on August 1, 2011, the provincial government added subsection 9(5) to the Regluation, which explicitly stated that notes of officers (both witness and subject) “shall be completed by the end of the officer’s tour of duty, except where excused by the chief of police”, which limits any flexibility which may have been contained in the meaning of “contemporaneous”.

 

The court’s opinion seems to be that contemporanity enhances reliability.  In other words, notes that are made at the time of the incident or shortly thereafter are inherently more reliable than notes made well after the incident, presumably because the incident is fresh in the mind of the writer at the time the notes are written.  However the Court of Appeal does not address why allowing an officer to write their notes after the end of their shift, perhaps as soon as the following day, after they have had a chance to recover and process the incident, reduces reliability.  If anything, I would submit that it increases reliability.  No one should expect someone who has been through a traumatic incident (such as shooting and killing another human being) to be in the best frame of mind to record exactly what happened in detail.  Stress and shock can often have the effect of blurring memory and disrupting the thought process.  This is why police officers who are investigating an incident where there are victims or witnesses who have been through a traumatic experience do not simply stick a piece of paper in front of them and expect them to provide a complete and accurate statement before they leave the scene; they interview them later, after they have had an opportunity to deal with the immediate trauma and process what occurred.  Why then, should witness officers be treated differently?

 

For that matter, why should subject officers be treated differently?  One might make the argument that a subject officer is a person under investigation (by the SIU) and not a witness or victim and police routinely interview people under investigation immediately after a traumatic incident, even though they too may be feeling the stress and pressure of having caused serious bodily harm or death to someone and are being investigated with the potential that charges will be laid.  The response to this argument depends on how one views the officer who has been involved in a traumatic incident which resulted in serious bodily harm to death to a civilian.  Unlike the person who is under investigation by the police for an incident that resulted in serious bodily harm or death, there is a presumption that, when the incident occurred, the officer was in the lawful execution of their duties, carrying out a valuable social function (and a tremendous responsibility) with which the public has entrusted them.  The fact that there is such a presumption cannot be disputed.  If it did not exist, the officer would immediately be arrested for committing a criminal offence that caused serious bodily harm or death to another person.  This presumption ought to entitle the officer to be treated with the same considerations as a victim or witness who has been through a similar trauma.

 

It remains to be seen whether chiefs of police will, for the reasons outlined above, exercise the discretion afforded them by s. 9(5) of the Regulation on a routine basis to allow officers to book off duty without having completed their notes in their entirety.  As I have said, there is no logical reason why this should be viewed as reducing the reliability of such notes.  In fact this would be entirely consistent with the commonly accepted practice of allowing officers to add late entries to their notes at a later time or date, in the interests of recording all the relevant details for later use as an aide-mémoire and also to fulfil the evidentiary function of notes.

 

Regardless of whether officers are required to complete some or all of their notes in the same shift as an incident they are involved in, they would be well advised, if the concern is reliability of their notes, as the court claims, to consider describing, in detail, the circumstances under which they are writing those notes, including their state of mind, their physical and emotional condition, and their feelings about the incident.

About the author: Simon Borys is a former police officer who is currently studying law at Queen’s University in Kingston, Ontario to become a criminal defence lawyer.

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Tags: Criminal Defence Lawyer, Former Police Officer, Investigation, Kingston, Law Student, Simon Borys, SIU

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