If a police officer witnesses a bank robbery, do you think he should consult a lawyer before he writes his notes of the event? Most Canadians would say no. Would your answer change if the police officer witnessed a colleague shoot and kill a civilian?

You might be surprised to learn that until recently, Ontario Provincial Police consulted with lawyers before preparing their police notes when one of their own was under investigation for using deadly force.

Recently, the Supreme Court of Canada delivered a strong rebuke to that practice. In a victory for police accountability, Canada’s top court ruled that the duty to write independent notes is central to the integrity of the criminal justice system.

The case of Wood v. Schaeffer, involved two separate, tragic police shootings. Douglas Minty was a 59-year-old developmentally disabled man. Levi Shaeffer was 32-year-old who suffered from psychiatric problems. In both incidents, police officers had confrontations with the men, then shot and killed the men.

In the normal course, police officers who witness or participate in fatal shootings take detailed notes of the incident – recording what happened and when – so that there can be an accurate and impartial investigation. These “duty notes” are central to the responsibility of a police officer.

However, in the cases of Mr. Minty and Mr. Shaeffer, superior officers instructed the officers who witnessed the shootings to refrain from making their police notes on the incident until they had spoken with lawyers. Only after the officers received legal advice did they write and surrender their notes to Ontario’s Special Investigative Unit (SIU), the civilian agency responsible for conducting independent investigations into incidents involving the use of police force causing death or serious injury or allegations of sexual assault.

The government of Ontario created the SIU in 1990 to address citizens’ fears that police were not being held accountable for abuses of the law when one of their own was under investigation. The SIU was the first of its kind in Canada.  The SIU sends a team of civilian investigators to secure the scene, interview witnesses, assess the evidence and conduct all aspects of the investigation in order to determine whether a criminal offense took place.

In Wood v. Schaeffer, the Supreme Court of Canada determined that the legislation governing the SIU was not meant to permit police officers to consult with counsel before completing their notes. The Court found that the duty to write complete and independent notes is central to the integrity of the criminal justice system and the public’s confidence in the police. In strongly worded reasons, the Court stated:

Permitting police officers to consult with counsel before their notes are prepared is an anathema to the very transparency that the legislative scheme aims to promote.  Put simply, appearances matter.  And, when the community’s trust in the police is at stake, it is imperative that the investigatory process be — and appear to be — transparent.

The Court referred to the long, troubled history of “police investigating police”, and emphasized that independent police investigation is essential to maintaining the public’s confidence in the police. The Court stated:

No one is above the law.  When a member of the community is killed or seriously injured by a police officer, it is not only appropriate to ask whether the police were acting lawfully, it is essential.  To that end, the SIU plays a vital role in ensuring that our society remains fair and just and that everyone is treated equally before and under the law.

The BC Civil Liberties Association intervened in the case, arguing that effective investigations require access to the best available evidence, including timely and independent duty notes. We argued that by refusing to provide independent notes to the SIU, police forces were effectively making an end run around the legislation, hobbling the investigative power of the SIU. Andrew I. Nathanson and Gavin R. Cameron of Fasken Martineau represented the BC Civil Liberties Association pro bono in our intervention before the Supreme Court.

This is the first case we are aware of in which the Supreme Court of Canada has considered the rules that apply to independent investigations of incidents where police officers may have been responsible for death or serious bodily harm. While the case is, at heart, a case concerning the interpretation of Ontario’s legislation, the Court’s decision is a powerful endorsement of the model of independent criminal investigations of police. This is important because independent civilian investigative agencies are a relatively new development in Canada. This case will provide guidance to the Provinces that do not yet have civilian investigative agencies about what rules they should adopt, and in the Provinces that do have such rules about how those rules should be interpreted or adjusted.

Public trust in systems of policing is critical for ensuring effective policing. The Supreme Court of Canada’s decision in this case goes a long way toward assuring the public that where a death occurs in police custody, police will be held to maintain the highest commitment to serving the public with fairness and integrity.

The BC Civil Liberties Association is grateful to the families of Mr. Minty and Mr. Schaeffer, who vowed to vindicate the rights of their loved ones. The families fought a lengthy and costly legal battle all the way to Canada’s highest court – now all Canadians who care about police accountability will benefit from their courage.