On December 19, 2013, the Supreme Court of Canada released its decision in Wood v. Schaeffer (2013 SCC 71). The case arose from two separate police shootings. The families of the persons shot brought an application to clarify whether a police officer who witnessed or participated in an incident being investigated by the Special Investigations Unit (SIU) was entitled to speak with a lawyer before preparing notes about the incident. The Supreme Court’s response to this issue, in a clear majority judgment, is an unqualified “no.”
This issue was first addressed at the Superior Court of Justice, and then at the Court of Appeal which held that police officers were not entitled to seek assistance from counsel in completing their notes. However, the Court of Appeal stated that officers were entitled to “basic legal advice” as to the nature of their rights and obligations regarding the incident and SIU investigations.
At the Supreme Court, the majority held that police officers have no free-standing right to consult with counsel in the note-making stage, noting as follows:
- In view of the history and statutory purpose behind the creation of the SIU, to permit consultation with counsel in the preparation of notes would risk “eroding the public confidence that the SIU process was meant to foster”;
- Although regulations under the Police Services Act entitle police officers to counsel during SIU interviews, these regulations were “never intended to create a free-standing entitlement to consult with counsel that extended to the note- making stage;” and
- To permit consultation at the note-making stage would “impinge on the ability of police officers to prepare accurate, detailed and comprehensive notes in accordance with their note-making duties.”
The Supreme Court disagreed with the Court of Appeal’s view that the officers were entitled to “basic legal advice”. Even this limited consultation could give rise to an “appearance problem”. It would cause a reasonable member of the public to question whether counsel’s assistance at the note-making stage was sought by officers in their self-interest, that is, to protect them from potential liability from an adverse finding by the SIU. The Supreme Court emphasized the potential loss of public confidence that might consequently arise. The Supreme Court also noted that this initial consultation would be “essentially meaningless,” because counsel would be extremely restricted in what they could discuss with the officer. Counsel would only be allowed to tell officers about their rights and entitlements under the legislative scheme, and in the Supreme Court’s view, this information could be gathered from other sources and should form part of an officer’s training.
The Supreme Court concluded that a police officer’s notes are not meant to “provide a ‘lawyer-enhanced’ justification for what has occurred;” rather, they are “simply meant to record an event so that others… can rely on them to determine what happened.”
The Supreme Court emphasized, however, that officers are free to consult with counsel after they have completed their notes and filed them with the Chief of Police. Moreover, while not permitted to consult with lawyers before completing the notes, officers are not precluded from speaking to doctors, mental health professionals or uninvolved senior police officers regarding the incident.