Summary

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Summary

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Police — Special Investigations — Right to counsel — Subject officers — Witness officers — Whether the Court of Appeal for Ontario erred by circumscribing the scope and extent of a police officer’s right to counsel by adopting an unprecedented interpretation of the requirement that notes be prepared “in accordance with his or her duty” as prohibiting meaningful legal advice in connection with the preparation of their notes — Whether the Court of Appeal erred by virtually eliminating the presumptive common law right to consult with counsel despite the absence of any express or necessarily implied legislative restriction on the right to counsel — Whether the Court of Appeal crafted an unworkable protocol which renders virtually any discussion by an officer with counsel an ethical and practical minefield and which fails to recognize an officer’s right to procedural fairness, having regard to potential exposure to criminal or disciplinary prosecution — Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10.

In June 2009, the Special Investigations Unit was called upon to investigate the conduct of police officers involved in two separate incidents which involved the death of civilians at the hands of police. In both cases, the subject officer and the witness officers were instructed not to make notes until they had spoken to counsel, and the subject and witness officers were allowed to complete their notes after the end of the shift. In November 2009, the families of the deceased civilians asked the court to interpret the regulatory regime with respect to the rights and duties of police officers involved in SIU investigations. The application was dismissed for lack of standing, mootness and injusticiability. The Court of Appeal found that the application judge had erred on all three grounds. It allowed the appeal from the order striking the application and declared that the regulatory regime does not permit (i) police officers involved in an SIU investigation to have a lawyer vet their notes or to assist them in the preparation of their notes; or (ii) supervising officers, as a matter of course, to authorize subject and witness officers to refrain from preparing their notes to permit consultation with counsel regardless of the expiry of the officer’s shift; but do permit (iii) police officers to obtain legal advice as to the nature of their rights and duties with respect to SIU investigations, provided obtaining that advice does not delay the completion of their notes before the end of their tour of duty.

Lower Court Rulings