Lawyers can’t vet officers’ notes in SIU cases, Ontario Court of Appeal rules

November 15, 2011
Tracey Tyler, Toronto Star

Police officers involved in fatal shootings and other serious incidents are not permitted to have a lawyer vet or help prepare their notes before they’re turned over to the Special Investigations Unit, the Ontario Court of Appeal has ruled.

In a 3-0 decision Tuesday, the court said allowing lawyers into the process to shape and refine the finished product would defeat “the fundamental nature and purpose of a police officer’s notes” – to provide an independent and contemporaneous recollection of what happened.

“An officer eager to have … a legally valid explanation for his or her own conduct would naturally emphasize and present the facts in accordance with the lawyer’s advice,” said Justice Robert Sharpe, who wrote the judgment.

There’s nothing to prevent an officer immersed in the “stressful” aftermath of a police shooting from getting some basic legal advice about their rights and duties, such as whether they are required to answer questions from SIU investigators, Sharpe said.

But officers must complete their notes before the end of their shift and can’t delay for the purposes of getting advice from a lawyer, he said on behalf of a panel that included Justices Robert Armstrong and Paul Rouleau.

The decision is a victory for the families of Douglas Minty, 59, and Levi Schaeffer, 32, two mentally ill men shot dead by the Ontario Provincial Police two days apart in June 2009.

Their families were shocked by some of the practices employed by officers during investigations by the SIU, the independent civilian agency set up to investigate when police are involved in cases involving death, serious injury or sexual assault.

They’ve also been a concern to SIU director Ian Scott, who has complained such practices frustrate the agency’s investigations.

“This judgment is a huge step forward in the battle against police manipulation of SIU investigations,” said Julian Falconer, a lawyer representing the families.

At a hearing earlier this year, the appeal court was told it is common for officers involved in SIU investigations to prepare double sets of notes, one to be vetted by their lawyer and a second for public consumption.

The court was also told that in a Hamilton Police Association newsletter in 2009, a Toronto lawyer who frequently represents officers, recommended anyone involved in an SIU investigation be vague about how many times they fired their gun.

The lawyer also offered an example of how an officer might logically explain such an incident.

“The obvious needs to be said again and again,” he wrote. “He pointed the firearm at me and, fearing for my life and the life and safety of my fellow officers and members of the public, I fired at him several times.”

About five hours after Schaeffer was killed during an investigation into a boat theft at Pickle Lake, the officer who fired the fatal shot consulted his lawyer, Andrew McKay, who asked him to prepare notes for him to review.

The officer, Constable Kris Wood, later wrote in his notebook that Wood advised him that his notes “were excellent and to complete his notebook.”

The families sued, asking a judge to rule on whether the note-vetting custom and other practices followed by officers in the course of SIU investigations were authorized under the Police Services Act.

The officers and the Commissioner of the OPP argued the families had no standing to bring that question before a court as a matter of public interest. They also argued the family’s concerns had become moot as a result of recent amendments to rules governing SIU investigations.

The appeal panel disagreed.

The court awarded the families $100,000 in legal costs, to be paid by police respondents.

Investigation: Above the Law

ABOVE THE LAW - A SERIES PROBING POLICE CONDUCT IN ONTARIO
A Toronto Star investigation has found lack of results and little accountability from the $7 million a year Special Investigations Unit that probes police accused of injuring or killing civilians.

Tomorrow: The shooting death of Douglas Minty and the police-friendly investigation that followed.

Seems the more things change, the more they stay the same. See also the September 2008 report released by the Ontario Ombudsman's office: Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility

Call for police watchdogs growing across Canada

July 27, 2010
Shannon Kari, National Post

Standing on the front steps of the sandstone facade of the Osgoode Hall courthouse in downtown Toronto, Evelyn Minty grieved openly about the loss of her son, Douglas, who was fatally shot by an Ontario Provincial Police officer last year.

"I want answers. I want to know what happened with my son," she said outside a court hearing this spring. "I don't want mothers to go through what I have gone through. It's been a year. I can't forget it. I can't sleep nights."

Her developmentally disabled 59-year-old son had a knife and was allegedly approaching an officer in the small community of Elmvale, about 120 kilometres northwest of Toronto, when he was killed.

The Special Investigations Unit (SIU), the civilian agency in Ontario that probes incidents of serious harm or death involving police, ultimately decided not to charge the officers involved. It was not an unexpected decision: No criminal charges have been laid against a police officer in Ontario in any of the 45 fatal shootings of civilians over the past decade.

Frustrated by the lack of information about the case, the Minty family and relatives of Levi Schaeffer, another man fatally shot last year by police, went to Ontario Superior Court. They want the court to order an end to practices such as officers consulting with lawyers before drafting their notes in these types of cases. What is unusual is that the families have the support of the SIU. Its director, Ian Scott, agreed that the vetting of notes and the potential for collusion when several officers retain the same lawyer are preventing the agency from conducting independent and timely investigations.

It is the first time in the two decades since the SIU was created that its director has complained publicly about impediments to investigating police.

Standing on the other side of the court aisle were lawyers representing every major police organization in Ontario.

"We have a pretty good model," said Ron Bain, executive director of the Ontario Association of Chiefs of Police, in an interview. "The SIU has evolved over time to be more operationally sound. I am not hearing anything out of the Atttorney-General's office that the SIU needs changing."

Resisting change, however, may be a futile pursuit. The call for better police oversight is growing.

The Alberta and Manitoba governments are moving to greater civilian oversight of incidents of serious injury or death to a civilian involving police. The Toronto Police Services Board has agreed to a review of the actions that led to the arrest of hundreds of people at the G20 summit in June.

Perhaps most prominent are the recommendations of Thomas Braidwood, who presided over the inquiry into the death of Robert Dziekanski, who died after being Tasered at Vancouver International Airport in 2007. He is calling for the creation of an oversight agency with the broadest powers in the country. "The debate is no longer whether British Columbians should have a civilian-based investigative body, but what it should look like," wrote the retired B.C. Court of Appeal judge in his report released last month.

One recommendation, which by Mr. Braidwood acknowledges is potentially controversial, is that the new agency would eventually be made up only of civilian investigators. This is not the case in Ontario, where most SIU investigators are retired officers.

This is not something police in B.C. would necessarily oppose. "Our concern is only that the investigators have the proper training and expertise," said Clayton Pecknold, president of the B.C. Association of Chiefs of Police.

The association first said last fall that it supported a civilian oversight agency in B.C. "These investigations take up a lot of resources. We are happy to have an agency take this one on," said Mr. Pecknold, who also serves as deputy chief constable of the Central Saanich Police Service.

"While we have confidence in our past investigations, we need to deal with public perception. Let's get this up and running."

The B.C. Civil Liberties Association is also urging the province to move quickly to implement the Braidwood recommendations. "I am very optimistic. This is what the public wants," said Robert Holmes, president of the civil liberties group. "Oversight is not about criminal charges [against police], it is about public confidence."

For its part, the B.C. government indicated the new oversight agency would be up and running within a year. Attorney-General Michael de Jong declined a request for an interview.

Julian Falconer, who represents the Minty and Schaeffer families, said better oversight will increase public confidence in police. "It does police services no good to justify or conceal bad policing. Good police officers should not be left out of the equation of those who benefit from effective oversight," Mr. Falconer said.

In Ontario, there may also be political obstacles for the SIU, as well as the relatives of Mr. Minty and Mr. Schaeffer.

Superior Court Justice Wailan Low ruled recently that it was not for the courts to decide on whether the vetting of notes and one lawyer representing multiple officers violate Police Act regulations. While two provincial reports recommended an end to the practices, "whether the government adopts the suggestions in the reports and enacts laws to implement them is within its province alone," she concluded.

Lacking confidence that the Ontario government will act on those two reports, the families recently filed an appeal of Judge Low's ruling. That appeal is unlikely to be heard until the fall.

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SIU FACTS

Often described in other provinces as the "gold standard" for civilian oversight of police panels, the Special Investigations Unit in Ontario, however, has been beset by controversy since it was created in 1990. Some facts:

-No fewer than seven government-commissioned reports have examined policing, oversight and the complaint process since the SIU was created.

-Its annual budget of $6.8-million (according to its 2008 annual report, the most recent available) is less than half that of the Police Ombudsman of Northern Ireland, even though Ontario has seven times the population.

-Between 2003 and 2008, criminal charges were laid against police in less than 2% of the more than 1,000 cases investigated.

-A 2008 report by Ontario Ombudsman Andre Marin, himself a former SIU director, suggested it was still a "fledgling" organization that was "administratively and technically challenged."

"Why couldn't they use a TASER?"

Just over a year ago, on June 23, 2009 (five years to the day after my brother was tasered to death in Vancouver, BC), Peter Holran, VP Government and Public Affairs, Taser International, "tweeted" on TWITTER, under his Twitter-name : TASERPeter - as follows:

RT @m2lowe I'm all for tasers if they prevent this: "Police shoot mentally disabled man"
10:27 AM Jun 23rd, 2009 via web
Reply Retweet

When I read Peter Holran's "tweet", I responded on this blog: taser executive tweets on tasering canadians with intellectual disabilities

Pete was referring to the tragic case of a Canadian fellow named Doug Minty, a man in Barrie, Ontario, with intellectual disabilities who had become agitated as the result of a visit from a door-to-door salesman. The Ontario Provincial Police (OPP) were called to his home. Mr. Minty was SHOT FIVE TIMES by the OPP and he died on June 22, 2009.

The OPP were exonerated in Mr. Minty's death.

"Why couldn't they use a Taser?" asked his neighbour.

YESTERDAY, the Ontario Provincial Police USED A TASER on Aron Firman, a 27 year old man with mental illness. Within moments, Mr. Firman "became unresponsive" and he died. Like Doug Minty, Aron Firman was unarmed and posed no credible threat to trained police officers.

To Peter Holran, VP Government and Public Affairs, Taser International, and Julian Fantino, Commissioner of the Ontario Provincial Police (aka Mr. "I am absolutely convinced that tasers save lives and injuries for both citizens and police officers", aka Mr. "Do your own homework"), I repeat: In Canada, we DO NOT shoot NOR do we taser our most vulnerable citizens. This man had mental illness, for god's sake. He did not deserve this.

This hurts.

I work for a wonderful Community Living organization in southeastern Ontario that supports people with intellectual disabilities. Our staff are trained in CPI, an international training process that specializes in the safe management of disruptive and assaultive behavior. It is seldom required but works beautifully.

A commenter this evening said: You fail to mention that FOUR (4) Ontario Provincial Police officers were involved at the Collingwood Ontario group home when Aron Firman, a 27-year-old resident when "Officers used a conductive energy weapon, a Taser, to subdue" him! FOUR COPS! Ontario Provincial Police sent FOUR cops to subdue one 27-year-old? What's wrong with this picture?

(There were THIRTEEN Vancouver police officers present when my brother, Robert Bagnell, died on June 23, 2004.)

**************

There`s more to this story than meets the eye:

In May 2010, an Ontario Judge was asked to find OPP’s Julian Fantino violated Police Services Act in a landmark court case that will decide whether police officers in Ontario routinely break the law during SIU investigations. Doug Minty's case was highlighted: “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. The officers’ lawyers conferred with them at the scene before the SIU arrived on the scene almost four hours later. The officer would later say he saw Minty advancing with a knife. Also in May 2010, Ontario's Ministry of the Attorney-General's Chris Bentley stopped government lawyers from working for the SIU in the high-profile case. Four lawyers, including one of the ministry’s most senior counsel, had been representing SIU director Ian Scott in the proceedings. But, just hours before the hearing was scheduled to begin, the SIU – an arm’s length branch of the ministry – was told to find its own representation. For more information, GOOGLE Doug Minty+Julian Fantino.

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.

taser executive tweets on tasering canadians with intellectual disabilities

A prominent Taser International executive "tweeted" the following statement on Twitter earlier today: "I'm all for tasers if they prevent this: "Police shoot mentally disabled man""

So, as it turns out, Doug Minty, a 59 year old man with intellectual disabilities, died on Monday night after he was shot with a gun an as-yet undisclosed number of times by an Ontario Provincial Police officer. The Toronto Star report above says neighbours heard "multiple gunshots." The Barrie Examiner says police discharged a weapon "at least once" and are "searching for witnesses." (Did anyone get VIDEO?????) When the officer arrived there was an "interaction" between him and an occupant of the home. The involved officer was not injured. The North Bay Nugget says "Police were called to 21 Lawson Ave. shortly after 8 p.m. in response to an altercation between a door-to-door salesman and a resident of the home ... Several neighbours said they heard four shots go off."

To the tweeting Taser International executive mentioned above, who holds this news up as a fine example in FAVOUR of tasers, I say: In Canada, we DO NOT shoot NOR do we taser our most vulnerable citizens. This man had INTELLECTUAL DISABILITIES, for god's sake. He did not need to be shot with a taser any more than he needed to be shot with a gun!!!

And, in fact the last time a taser was used on a person with intellectual disabilities in Canada, it was used by the same outfit - Julian Fantino's Ontario Provincial Police - when they tasered a 14 year old girl with intellectual disabilities to bring her to compliance with officers’ orders to stop scratching paint off the walls of the holding cell where she was being held. A $500,000 lawsuit against the OPP is in the works.

And, in October 2008, the Toronto Police tasered an intellectually disabled man multiple times. A $9 million dollar lawsuit is in the works.

I'm sickened by today's news and by Taser International's use of this tragedy as a pathetic attempt to sell more tasers.