Lawyer-approved police notes illegal, SIU says

May 11, 2010
Robyn Doolittle, Toronto Star

Judge asked to find OPP’s Julian Fantino violated Police Services Act

The director of the Special Investigations Unit has intervened in a landmark court case that will decide whether police officers routinely break the law during SIU investigations.

Ian Scott has asked a judge to rule it is illegal for officers to have their notes and comments “approved” by a police union lawyer before being interviewed by the agency, which investigates cases of serious injury or death involving officers.

Critics of this longstanding practice say it provides an opportunity for collusion. Police counter that officers are simply being granted the same rights as a civilian under the Charter of Rights.

Scott has also raised concerns about officers being properly segregated from each other after an incident. In a move that has set off a firestorm in the policing world, Scott has asked the Superior Court judge to find that OPP Commissioner Julian Fantino violated the Police Services Act for allowing this practice to continue.

If the judge agrees, this would open the door for police chiefs across Ontario, including Toronto’s Bill Blair, to face police act charges.

“This is a very significant development in attempting to ensure some level of accountability in SIU investigations. The absence of leadership has been a major problem in this area and frankly it accounts for why it has festered and continued for so long,” said lawyer Julian Falconer.

Falconer represents the families of two mentally disabled men fatally shot by OPP officers. Their families believe the OPP violated the police act during the SIU investigation. The case will be heard in Superior Court beginning Thursday.

In both deaths, officers who witnessed the shooting, as well as the officer who pulled the trigger, were instructed to delay writing their notes until after an association lawyer, Andrew McKay, reviewed them.

On June 22, 2009, Douglas Minty was shot five times outside his mother’s Elmvale home. The 59-year-old became distraught over an altercation with a door salesman. The officer would later say he saw Minty advancing with a knife. The SIU was not contacted until an hour and a half after the incident.

“In that time, the OPP received statements from the most significant eyewitnesses, had their media officer attend and had (the union involved),” according to court documents.

Two days after the Minty shooting, 30-year-old Levi Schaeffer was shot dead on the shore of Pickle Lake in northern Ontario. Officers were investigating reports of a stolen boat. In this case, all five officers involved shared the same lawyer and had a draft set of notes approved before submitting a final version to the SIU.

After a three-month probe, Scott announced that because officers in the Schaeffer case were not segregated and that because their comments were vetted by a lawyer, he had no reliable evidence to make a judgment. The officer was cleared.

“In this most serious case, I have no informational base I can rely upon,” Scott said at the time. “The first drafts have been ‘approved’ by a (union) 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.”

In contrast, when police investigate civilian incidents, it is routine practice to immediately separate witnesses and suspects. Investigators do this to make sure witnesses’ memories aren’t tainted and to prevent suspects from fixing their story.

But unlike civilians, police officers are bound by a set of rules under the Police Services Act to cooperate with an investigation. For one, all witness officers must give an interview to the SIU. The subject officer may refuse. Everyone involved must write notes, but only the witness officers must hand them over. Herein lies the heart of the dispute between Falconer and the SIU versus Ontario’s police community.

The act states that police chiefs shall, whenever “practicable” segregate police officers involved in an SIU incident. “A police officer . . . shall not communicate with any other police officer involved . . . until after the SIU has completed its interviews.”

Falconer said police associations are using the Charter issue as a red herring. Police officers can have a lawyer without it being the same lawyer as the others involved.

“Furthermore, you will not find a credible constitutional lawyer who would argue that the Charter gives a right to counsel to a witness in a criminal investigation. That is completely absurd,” said Falconer.

Alok Mukherjee, chair of the Toronto Police Services Board, said Falconer and the SIU are just plain wrong.

“Falconer and Scott’s opinion on whether the Charter protects police officers in an SIU investigation, I have seen nothing either in the act or the Charter that supports their opinion,” said Mukherjee. “If anyone is raising a red herring, it is Falconer, Scott and their advocates in the media.”

Cornwall Police Chief Daniel Parkinson, president of the Ontario Association of Chiefs of Police, noted that if every officer involved in an SIU investigation had a different lawyer it would become “prohibitively” expensive.

McKay, who acted for the OPP in both shootings, said an important issue is being lost in the whole argument.

“We as lawyers have professional obligations. When I go in and speak to officer A, and he tells me what happened, and then I go speak to officer B, I don’t . . . say: ‘I just spoke to officer A, this is what he told me, what do you say?’ If there’s any conflict in the stories, I would leave and call another lawyer. That happens all the time.”

Attorney General Chris Bentley said Monday the ministry has not taken a position on the issue as it is before the courts.