Schaeffer vs. Wood – A Matter of Perspective…
This case was released by the Supreme Court of Canada on December 19, 2013, and addressed the right of police officers to consult with legal counsel prior to the preparation of their notices during an investigation involving the Special Investigations Unit.
The Supreme Court determined that police officers do not have a right to consult with a lawyer prior to the preparation of their notes, however, this decision reaffirms that police officers are entitled to have counsel present for interviews and any additional processes thereafter. The Court ultimately failed to make a decision on the Charter rights of officers involved in SIU investigations, which renders this decision incomplete in that regard.
This ruling suggested that allowing police officers to fully consult with counsel at the note-making stage creates a sense of bad optics, however, it also emphasized that counsel giving full legal advice to police officers was not improper. In balancing a police officer’s public duty to accurately record an incident against that officer’s private interest in avoiding criminal prosecution, the Court favored the “appearances” argument of how it looked to the public. Despite the fact these two interests are one and the same, any public misunderstanding that is created by an officer receiving legal advice prior to completing his/ her notes, was found to outweigh that officer’s Charter rights.
Although very disappointing, we must consider that this case does not prevent officers from contacting their senior officers prior to the note-taking stage, and it does not prevent the immediate notification of counsel. In addition, this decision does not prevent counsel from discussing the matter at hand with individuals who are not involved in the actual incident, such as the SIU liaison officer, officers in charge, or association representatives.
Overall, we encourage all members in these situations to engage with their Association representatives, who are fully equipped to provide all of the necessary information. In addition, we also encourage our members to ask any questions they may have regarding SIU investigations prior to becoming involved in an SIU incident. We recognize the impact of not being able to consult with legal counsel prior to note taking, however, with the benefit of in-house legal counsel with expertise in the field of the SIU, we can work together to minimize the effect of this decision. A full copy of this case can be found at www.pao.ca.
Chad Power and the London Police Service (OCPC) – Insubordination or Self-Preservation?
In this case, released December 23, 2013, the Ontario Civilian Police Commission clearly concludes that the merging of criminal and Police Services Act investigations amounts to an abuse of process. In this case, the Commission determined the merging of these investigations was inappropriate and the evidence that resulted from them was therefore, contaminated. As a result, the Commission stayed the proceedings as against Chad Power.
The impropriety of police officers being forced to incriminate themselves during criminal investigations under the purported justification that they are being compelled to give a statement under the Police Services Act has been a common issue that has arisen over several years within disciplinary proceedings. Our position has repeatedly been that this practice is contrary to the Charter of Rights and Freedoms.
The common position from most Police Services has been to agree not to force police officers to give statements during criminal investigations, however, the reality is this still occurs, and at times, officers are ordered to provide statements under the threat of facing charges of insubordination should they refuse to “cooperate”.
In this decision, the Commission has emphasized that using Part V of the Police Services Act to compel evidence in a disciplinary matter 25 against a police officer, to assist a criminal investigation against the same officer, is not justified. It brings the police discipline system into disrepute to discipline an officer based on evidence that is acquired in this manner. It also undermines the public confidence that PSA-based investigations and proceedings will be conducted in a manner that is fair, lawful and respectful of a subject officer’s constitutional rights.
Investigations conducted by police officers have to be conducted with the greatest respect for fairness because they are the foundation of the further prosecution of offenses. For a full copy of this decision, visit www.pao.ca.
Taking the Initiative to Ensure Fairness
With increasing amounts of public complaints being brought forward, the OIPRD has become an integral part of the oversight that is taking place within this profession. In that regard, the role of your Association within these matters has also increased, and we want to make you aware of the positive steps we are taking to ensure this process is a fair one.
Pamela has engaged the OIPRD director Gerry McNeilly in discussion regarding several areas of concern for Associations. Some of the topics for discussion included the 6-month time period the PSA permits to have an officer served with a Notice of Investigation, the consistency in the approach taken by the OIPRD across the province, including penalties and procedures, and the consent of the public complainant and the OIPRD in formal disciplinary matters.
The OIPRD has assured our organization they are working to ensure officers are not held in limbo for the 6-month time period, awaiting the outcome of their investigations. Furthermore, they have agreed to revisit their approach in several matters to ensure consistency is being applied. We are confident a more uniform approach will be taken to ensure all matters involving the OIPRD are dealt with according to the PSA, and the Rules of the OIPRD. We will continue to educate and update you on this process, as it unfolds.
The OIPRD is Not a Party to a PSA Proceeding
In a recent PSA decision, the OIPRD was denied standing at a disciplinary proceeding held as the result of a public complaint. The OIPRD was seeking to be made a party to the proceeding, and wanted a seat at the table to explain its position, call evidence and make submissions.
The PSA quite clearly states the parties to the hearing are the prosecutor, the subject officer and the complainant. The OIPRD is granted many extraordinary powers under the legislation, however, the law does not grant the OIPRD standing at an officer‘s disciplinary hearing. This is a position we maintain, and made very clear to the OIPRD during our meeting.
The Hearing Officer agreed, and held that standing for the OIPRD was neither necessary nor permissible under the Act. He further held that the OIPRD could provide evidence as a witness called by one of the parties to explain why information may not have been shared with the prosecutor. The full decision can be found on at www.pao.ca.
One step at a time, we will work through these developments in order to ensure you are prepared for any outcome.