SCoC bars lawyers from coaching police in writing notes

[oneh2obabe]

Ruth Schaeffer and Evelyn Minty’s four-year legal battle ended in victory Thursday as Canada’s highest court ruled police officers under investigation are not permitted to have lawyers vet or assist with writing their notes before they’re submitted to the Special Investigations Unit.

Schaeffer’s schizophrenic son, Levi, 30, was shot and killed by an OPP officer in a secluded area near Pickle Lake, Ont., in 2009.

“If police have to write their own notes and are not assisted by a lawyer, and their notes are not enhanced by a lawyer, then the next mother of somebody who’s been shot by police will know what happened,” said Schaeffer. “I will never know what happened to my son.”

Schaeffer said getting to the Supreme Court of Canada decision, which she calls “a very significant and necessary first step in a process to fix a very broken system,” has cleaned out her life savings.

“It's all gone. Every cent,” said Schaeffer. “It’s gone, and I believe that that’s the best spent money ever. I don't regret that in the least.”

Minty’s 59-year-old son, Douglas Minty, was shot and killed by an OPP officer in 2009.

“It’s been a long road,” said Minty. “We won.”

In both cases, police were told to consult legal counsel before writing down their recollections of the events that led to the deaths of the men.

The SIU determined no charges should be laid but raised concern with the note-taking practices. In Schaeffer’s case, an officer waited two days before writing his notes.

The ruling, written by Supreme Court Justice Michael Moldaver on behalf of the majority, calls for notes to be written immediately after the incident and without discussion with a lawyer.

Wood v. Schaeffer, Supreme Court of Canada
http://scc-csc.lexum.com/decisia-scc-cs ... 8/index.do

“Permitting officers to consult with counsel before preparing their notes runs the risk that the focus of the notes will shift away from the officer’s public duty toward his or her private interest in justifying what has taken place. This shift would not be in accord with the officer’s duty,” Moldaver wrote.

Former SIU director Ian Scott called the move a huge step forward, noting that it vindicated a position he long fought for in the face of police opposition.

“It will guarantee that the notes that the SIU investigators rely upon, and ultimately the director to decide whether there’s criminality, will be more independent,” Scott said in an interview with the Star. “It's an unprecedented day. You don’t get too many cases from the Supreme Court of Canada talking about civilian oversight and how to facilitate it.”

The current director of the SIU, Tony Loparco, said the agency welcomes the decision.

“It will without question contribute, as the Court suggests, ‘to maintaining public confidence in the police and the justice system as a whole,’” he said in a statement on the agency’s website.

In November 2011, Ontario’s top court unanimously sided with the families of Minty and Schaeffer, but police lawyers appealed, triggering the latest hearing at the Supreme Court.

Julian Falconer, lawyer for the families, called the decision a “historic win.”

“What the Supreme Court of Canada has done is to actually protect confidence in policing,” said Falconer. “This, above all, is a proud legacy in respect of the deaths of both Levi Schaeffer and Doug Minty.”

Jim Christie, president of the Ontario Provincial Police Association, said the move infringes on the right of police to access legal counsel.

“The highest court in the land has said that police officers categorically have less of a Charter protection than the rest of Canada. I’m not happy, with that but I’m glad for clarity,” Christie said. “They’re the law of the land, and we absolutely support it and we abide by it.”

Schaeffer said that throughout the case the families have been conscious of rights of police to legal counsel.

“As far as I’m concerned, they have the same rights that we do. But they also have extraordinary powers. They have the power of life and death over the citizenry in Ontario. Because of that they need to write their notes independently and contemporaneously, before the end of their shift, and then have a right to counsel,” she said.

Doug Minty’s brother, John Minty, agreed, noting that police perform a role that requires accountability.

“It’s a sacred trust as an institution. Your job is to look after the betterment of the people — and in this case, the people of Ontario,” he said. “This is a step in making them accountable, to act the way they should and to enhance the safety of everyone.”

http://www.thestar.com/news/canada/2013 ... _case.html

[A_Britishcolumbian]

i would like to point out that Greg Matters, the man who was killed by the rcmp's four person ert team in prince george, september 10, 2012, three members of the team gave verbal interviews to the iio the day after the shooting, but the shooter himself, Cpl. Collin Warwick, refused to interview, refused to submit a statement, until three weeks later when he submitted a document he prepared with the aid of a lawyer.

to my knowledge that lawyer was not on the scene of the incident, and does not have any psychiatric or hypnosis training, so i cannot for the life of me understand how that lawyer was able to assist in recalling the events that led to Greg's death.

remember as well, Greg was denied counsel before they executed him.

viewtopic.php?f=26&t=52911&start=75

[KL3-Something]

i would like to point out that Greg Matters, the man who was killed by the rcmp's four person ert team in prince george, september 10, 2012, three members of the team gave verbal interviews to the iio the day after the shooting, but the shooter himself, Cpl. Collin Warwick, refused to interview, refused to submit a statement, until three weeks later when he submitted a document he prepared with the aid of a lawyer.

to my knowledge that lawyer was not on the scene of the incident, and does not have any psychiatric or hypnosis training, so i cannot for the life of me understand how that lawyer was able to assist in recalling the events that led to Greg's death.

remember as well, Greg was denied counsel before they executed him.

viewtopic.php?f=26&t=52911&start=75

Notes and statements are two VERY different things. Notes made to refresh the officer's memory are not theirs and actually belong to the agency they work for. Those notes, because they are an obligation of their duty (i.e they are coerced into making them) as part of their Duty to Account, CANNOT be used against them in any proceeding against them. When one is an accused or a person under investigation for an incident they are NOT obligated in ANY way to provide a statement of ANY type. They are afforded the same rights as any accused person in Canada. If they do so within 3-5 days of any critical incident they are doing themselves, and the investigation as a whole, a disservice. After any critical incident it takes at least 72 hours for your brain to process the information such that your recollection is as complete as it can be.

The member who provides a written statement to investigators through their lawyer in an incident that they are an accused in is providing something they are not obligated to.

At any rate. While this decision makes sense to me I think that the SIU, and other independent investigation authorities in the country, will probably find police officers just won't be making any notes in their agency notebooks in these types of situations and will only provide brief Duty to Account reports.

[Donald G]

I agree with the SCoC decision that the notes made by anyone required to take notes in connection with the terms of his/her employment should, in the event of a dispute over what took place, be made available to those on both sides of the issue; including police officers.

What everyone should keep in mind though is that describing even one picture can take 10,000 words. Describing a sequence of observations or actions is even more problematic. Everyone, especially prolific note takers like the police, continually edit the information they see, hear, smell or taste and include only that information (about 20%) in their notes that THEY, at that moment in time, consider important in determining what they BELIEVE took place. If additional information changes the picture of what happened the importance of the information noted changes accordingly. Lawyers suggest police incompetence, prejudice and lack of objectivity as being responsible for the distortion.

Defense lawyers love to try to use such situations to try to destroy the credibility of the individual officers by refusing to acknowledge that note taking and the importance of notes is part of a continuing process that the officer is involved in while carrying out an investigation. The human mind works much faster than any note taker can document the information. The information is thus always being vetted for importance as notes are being made. Some of what was noted and considered unimportant yesterday may become vitally important today or next week, month or year as a result of additional information changing the direction of the investigation.

Police notes are only a small part of the information used to compile an ongoing police report that attempts to document and correlate, to the extent possible, all of the information collected in relation to an entire police investigation. All of which information must be made available to defense counsel. Sometimes an entire four drawer filing cabinet in size.

In general a police statement is a narration of what one particular officer personally saw, heard or did relative to the overall investigation. All but independent of the rest of the investigation. The Canadian Charter protections may apply to a statement if the officer is being investigated for improper or criminal conduct.

[samsquench07]

A lawyer might not have been at the scene, but the defiantly could prep the RCMP, to tell the best possible version of the story, helping them if further action of court took place

In no way, should a lawyer help, aid and prep the RCMP story. By doing this, you are not getting the version of the truth.

[Donald G]

It sounds like the Lawyer simply did what defense lawyers in Canada routinely do in helping their usually criminal clients put themselves in the best light possible by picking and choosing what information to include or omit from their memories and offense situation to make their situation appear far different than it really should be viewed. How far does one have to selectively distort the truth before it becomes a lie?

Courts routinely admit such information into court. Especially at the time of sentencing.

[westbankkid]

Look back at the Dzanski (I hope I'm spelling it right) case. The Officers involved lied thru their teeth about what happened. One of the Officers even admitted that in court. I wonder how involved the Lawyers were in changing their statement of what actually happened.
Thank goodness it was caught on camera or they would have all got away scott free. They even refused to return the fellows camera until he got the courts involved.

The Supreme court ruling is long overdue. I think you will find it will commend the good cops and weed out the bad ones. I just wish the bad ones would be suspended without pay and if found not guilty get their back pay returned to them with interest.
Suspension for a year or more with pay and then they resign or are found guilty sucks.