Relatives of men killed by police lose court fight over officers' note taking

June 23, 2010
Colin Perkel, The Canadian Press

TORONTO - Families of two men shot dead by police in Ontario had no right to ask the courts to intervene in how officers involved in such incidents prepare their notes, a judge ruled Wednesday.

In dismissing the case, Ontario Superior Court Justice Wailan Low said the families had not shown any legal standing to press their case.

Rather, Low ruled, the issues in dispute were a matter of government policy, not law.

"It is not the proper function of this court to act as the policy maker of last resort," Low wrote in her decision.

"The court's function is to adjudicate issues which are both justiciable and within its jurisdiction."

Julian Falconer, who acted for the families, had no immediate comment on the decision, saying he was still consulting his clients.

The families had asked the court for a declaration that the officers involved in killing their relatives had violated the law around how police co-operate with the province's Special Investigations Unit, which probes such cases.

They asserted, among other things, that allowing the officer who pulled the trigger and officers who witnessed the incident to consult the same lawyer effectively amounted to collusion.

They also said the officers first provided notes to their lawyer, before turning them over to the civilian investigators.

Police groups argued the officers were simply exercising the same rights as any other citizen — the right to consult a lawyer of their choosing.

Low agreed.

"No duty is owed by the officer to any particular citizen in relation to the exercise of his right to counsel," the judge wrote.

In dismissing the application heard in May, Low said the families of Doug Minty, 59, and Levi Schaeffer, 30, had shown neither a private nor a public interest in the matter and hence could not turn to the courts.

Ontario Provincial Police officers shot Minty and Schaeffer dead in separate incidents a year ago. The SIU cleared the officers, saying it could not determine what had happened because the police notes turned over to investigators were unreliable.

In launching the application, family members had said they were looking to find out exactly what happened to their loved ones.

Minty, of Elmvale, Ont., who was mentally challenged, was shot five times outside his home, apparently after threatening the officer with a small utility knife.

Two days later, Schaeffer, of Peterborough, Ont., who had mental-health issues, was shot dead at a remote lake in northern Ontario following an altercation with two officers.