The Supreme Court of Canada has ruled that police officers involved in SIU investigations are prohibited from consulting with lawyers prior to the preparation of their notes.
The case was launched in the wake of two fatal shootings in 2009 by OPP officers in separate incidents which were investigated by the SIU. The families in those cases went to court seeking a declaration that police officers involved in SIU incidents were not entitled to obtain legal assistance in the preparation of their notes. The SIU was a party to that litigation and supported the position that the legislative scheme did not permit officers to consult with lawyers prior to preparing their notes of an incident under investigation. In a majority decision issued this morning, the Supreme Court of Canada has affirmed that position.
Writing for the majority, Justice Moldaver observed, “Permitting consultation with counsel before notes are prepared 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 accordance with the officer’s duty.” (para. 8)
SIU Director Tony Loparco commented, “The SIU respects and welcomes the decision by the Supreme Court of Canada. I am confident that the clarity the Court has brought to this contentious issue will be of benefit to all parties involved in SIU investigations. It will without question contribute, as the Court suggests, ‘to maintaining public confidence in the police and the justice system as a whole.’ The decision will better assist the SIU in conducting investigations in an independent and transparent fashion.”
The SIU is an arm’s length agency that investigates reports involving police where there has been death, serious injury or allegations of sexual assault. Under the Police Services Act, the Director of the SIU must
- consider whether an officer has committed a criminal offence in connection with the incident under investigation
- depending on the evidence, lay a criminal charge against the officer if appropriate or close the file without any charges being laid
- report the results of any investigations to the Attorney General.