Supreme Court rules against Ontario police on notes issue

[Michael Jack]

OTTAWA – The Supreme Court of Canada has ruled against allowing police officers under investigation by watchdogs to consult with lawyers before preparing their notes, a decision which referenced two cases involving Ontario’s Special Investigations Unit (SIU).

The high court ruling, by a margin of 6-3, pitted officers against the families of two men shot dead by Ontario’s provincial police in separate incidents in 2009.

The ruling offers clarity to the regulations that govern the SIU, which investigates violent incidents involving police officers.

“First, consultation with counsel at the note-making stage is antithetical to the dominant purpose of the legislative scheme because it risks eroding the public confidence that the SIU process was meant to foster,” wrote Justice Michael Moldaver for the majority.

“A reasonable member of the public would naturally question whether counsel’s assistance at the note-making stage is sought by officers to help them fulfil their duties as police officers, or if it is instead sought, in their self-interest, to protect themselves and their colleagues from the potential liability of an adverse SIU investigation.”

Lawyer Julian Falconer represented the families of Doug Minty, 59, and Levi Schaeffer, 30, who were shot and killed by Ontario Provincial Police officers in separate incidents in June 2009. He said the ruling is a victory for the families, but the cycle of police using guns on emotionally disturbed people must be broken.

“There is a recognition, a historical recognition, that the police use of lethal force, when they take the lives of mentally disabled men such as in this case, when they take the steps they do, it has a profound impact on our social fabric,” Falconer said after the ruling was issued.

“For that their price, their responsibility, is to be undeniably and absolutely accountable and it is sad that these families had to bear the burden, the task, of getting this job done. It shouldn’t have fallen to them.”

The “indispensable foundation” for the significant authority entrusted to police is public trust, and that trust can be tested when a member of the community is killed at the hands of a police officer, Moldaver wrote.

“The SIU is charged with the delicate task of determining independently and transparently what happened and why, in the hope of providing the community with answers,” he wrote.

“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.”

The families spent the past four years arguing that having a lawyer approve the notes that end up in police memo books is unacceptable. Ruth Schaeffer said she spent her life savings on the case.

“It’s a significant and necessary step on the way to ensuring accountability from the public servants in Ontario who have the most extraordinary powers,” she said.

Evelyn Minty said it has been a long, hard road, but she and her family did it for Doug and for “future families who need honest reports wrote up by the police.” There isn’t a day that goes by that she doesn’t think of her son, she said.

“I must admit I’ve had help from my family,” Minty said, choking up. “I’ve had help from my friends and when the going gets bad, I cry. Nobody knows. Sometimes at night in the dark of night.”

Police argued they have the right to talk to a lawyer of their choosing before finalizing their notes.

Three Supreme Court justices dissented, arguing that everyone has the right to consult with a lawyer.

“This freedom reflects the importance of the societal role of lawyers in a country governed by the rule of law and it should not be eliminated in the absence of clear legislative intent,” they wrote.

http://globalnews.ca/news/1040327/supre ... tes-issue/

[Michael Jack]

OTTAWA -- Allowing police officers under investigation by watchdogs to consult with lawyers before preparing their notes is an "anathema" to transparency and public trust in that process, the Supreme Court of Canada ruled Thursday.

The high court ruling, by a margin of 6-3, pitted officers against the families of two men shot dead by Ontario's provincial police in separate incidents in 2009.

The ruling offers clarity to the regulations that govern the Ontario's Special Investigations Unit, which investigates violent incidents involving police officers.

"First, consultation with counsel at the note-making stage is antithetical to the dominant purpose of the legislative scheme because it risks eroding the public confidence that the SIU process was meant to foster," wrote Justice Michael Moldaver for the majority.

"A reasonable member of the public would naturally question whether counsel's assistance at the note-making stage is sought by officers to help them fulfil their duties as police officers, or if it is instead sought, in their self-interest, to protect themselves and their colleagues from the potential liability of an adverse SIU investigation."

Lawyer Julian Falconer represented the families of Doug Minty, 59, and Levi Schaeffer, 30, who were shot and killed by Ontario Provincial Police officers in separate incidents in June 2009. He said the ruling is a victory for the families, but the cycle of police using guns on emotionally disturbed people must be broken.

"There is a recognition, a historical recognition, that the police use of lethal force, when they take the lives of mentally disabled men such as in this case, when they take the steps they do, it has a profound impact on our social fabric," Falconer said after the ruling was issued.

"For that their price, their responsibility, is to be undeniably and absolutely accountable and it is sad that these families had to bear the burden, the task, of getting this job done. It shouldn't have fallen to them."

The "indispensable foundation" for the significant authority entrusted to police is public trust, and that trust can be tested when a member of the community is killed at the hands of a police officer, Moldaver wrote.

"The SIU is charged with the delicate task of determining independently and transparently what happened and why, in the hope of providing the community with answers," he wrote.

"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."

The families spent the past four years arguing that having a lawyer approve the notes that end up in police memo books is unacceptable. Ruth Schaeffer said she spent her life savings on the case.

"It's a significant and necessary step on the way to ensuring accountability from the public servants in Ontario who have the most extraordinary powers," she said.

Evelyn Minty said it has been a long, hard road, but she and her family did it for Doug and for "future families who need honest reports wrote up by the police." There isn't a day that goes by that she doesn't think of her son, she said.

"I must admit I've had help from my family," Minty said, choking up. "I've had help from my friends and when the going gets bad, I cry. Nobody knows. Sometimes at night in the dark of night."
Police argued they have the right to talk to a lawyer of their choosing before finalizing their notes.

Three Supreme Court justices dissented, arguing that everyone has the right to consult with a lawyer.

"This freedom reflects the importance of the societal role of lawyers in a country governed by the rule of law and it should not be eliminated in the absence of clear legislative intent," they wrote.

http://www.ctvnews.ca/canada/top-court- ... orm-467202

[Michael Jack]

TORONTO - Families of two mentally-challenged men shot dead by police hailed a powerful Supreme Court of Canada decision Thursday that forbids police officers involved in such incidents from having lawyers vet their field notes.

The involvement of lawyers is "anathema" to transparency and public trust in the note-taking process, the court ruled in rejecting police arguments that they should be able to talk to counsel before writing in their memo books.

"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," Justice Michael Moldaver wrote for the majority.

"This shift would not be in accordance with the officer's duty."

In separate incidents in June 2009, Ontario Provincial Police shot dead Doug Minty, 59, and Levi Schaeffer, 30. The families spent the past four years arguing against lawyer-approved notes.

Minutes after the decision, Evelyn Minty, 86, fought back tears as she said the battle had been a long, hard struggle but worth it.

"It has helped other families and made police more accountable for what they do," Minty said. "That is what we wanted."

Schaeffer's mother Ruth said the ruling was a necessary step toward ensuring accountability from public servants who wield extraordinary powers.

"I did not do this for my son. My son is dead. There is nothing I can do for my son. I did this because I have grandchildren and other people have grandchildren," Schaeffer said.

"If a police officer cannot even write his notes without consulting a lawyer, then my grandchildren and nobody else's grandchildren are safe."

The 6-3 high court ruling clarifies regulations that govern Ontario's Special Investigations Unit, the independent agency which investigates death or serious injuries involving police.

In dissenting, three justices argued everyone should have the right to consult a lawyer.

Ian Scott, the former SIU director, sparked the battle when he took the unusual step of publicly denouncing the practice of having lawyers vet officers' notes, saying it rendered them unreliable.

The Supreme Court ruling will bolster public trust in police watchdogs and their ability to carry out their mandate, Scott told The Canadian Press.

"It's a huge step forward, an important step forward," Scott said.

"The next step I'd like to see is that the witness officers give their statements to the SIU investigators without a lawyer present."

Julian Falconer, who represented the families, said the cycle of police using guns on emotionally disturbed people must be broken.

"There is a historical recognition that the police use of lethal force...has a profound impact on our social fabric," Falconer said.

"For that, their price (and) their responsibility is to be undeniably and absolutely accountable, and it is sad that these families had to bear the burden, the task, of getting this job done."

Dan Axford, president of the Police Association of Ontario, called the ruling disappointing.

"It differentiates our rights to access counsel from that of all other citizens in Canada," Axford said.

In the decision, Moldaver wrote the "indispensable foundation" for the significant authority entrusted to police is public trust, which can be sorely tested when an officer kills someone.

"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," Moldaver wrote.

In a statement, current SIU director Tony Loparco said the court's clarification of the contentious issue would benefit everyone involved.

"The decision will better assist the SIU in conducting investigations in an independent and transparent fashion," Loparco said.

By Colin Perkel and Paola Loriggio, The Canadian Press

http://www.yorkregion.com/news-story/42 ... otes-case/

[Michael Jack]

2013 decision means that police can no longer consult with a lawyer before turning in their notes, but fight left mother devastated

PETERBOROUGH, ONT.—Ruth Schaeffer found out from the newspaper that no criminal charges would be laid against the OPP officer who killed her schizophrenic son in a remote camping area in 2009.

She had already been in a bad place for months, since officials from Ontario’s police watchdog, the Special Investigations Unit, turned up on her doorstep to inform her that her youngest child and only son, Levi, was dead.

She spent weeks in hospital for depression, was suffering from post-traumatic stress disorder, and had difficulty leaving the house.

Devastated, she was about to begin the biggest fight of her life — one that she doesn’t regret, but for which she would pay a heavy price.

Because not only had Ruth discovered from the paper that no officer would stand trial, she also learned that the SIU director could not conclude what exactly happened that day because the two officers involved had consulted a lawyer before preparing their notes, as was standard practice at the time. There were no other witnesses.

“It puts me in the position of not really knowing how my son died, which is unreasonable,” she said. “He was killed by public employees, who should have been able to tell me exactly what happened, without a lawyer’s assistance.”

A self-described “poorly resourced citizen,” Ruth would find herself at the centre of an expensive legal battle that would last more than four years.

Along with the family of Douglas Minty, a 59-year-old developmentally delayed man killed by an OPP officer in a separate 2009 incident, Ruth took the case against the police to the Supreme Court of Canada, which ruled in a landmark 2013 decision that officers under investigation could not speak with a lawyer before writing their notes.

It ensured that the record of an incident was independent and contemporaneous, which did not happen in the Schaeffer and Minty cases.

“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,” wrote Justice Michael Moldaver.

“Manifestly, the legislature did not intend to provide officers with an entitlement to counsel that would undermine this transparency.”

Just weeks after the provincial government announced an independent review into police oversight bodies, including the SIU, Ruth reflected on that gruelling legal challenge.

As beneficial as it was to police accountability, it wiped out her life savings and most of her possessions, leaving her bankrupt and her emotional recovery that much more difficult.

Her story is indicative of the challenges to overhauling police practices in Ontario, says her lawyer, Julian Falconer. It’s rare that politicians will take the lead on these issues, he says; the job falls to the victims and their families.

“It was extremely insulting that I would have to have a bake sale to raise money to change the laws so that people would be safer in Ontario,” Ruth said.

“The Ministry of the Attorney General has tons of money and could have done the legislative process. They certainly didn’t have to wait for me.”

She pointed out that problems affecting investigations into the police, including note-taking, had already been highlighted before the court case by former Ontario ombudsman André Marin, a former SIU director who published two reports on the oversight body.

Sitting in a friend’s backyard, she must at times take long pauses, as the tears flow freely down her face. After all these years, her emotions are still raw, and her frustration with the government and its sluggish pace toward reform still very strong.

“What I did, by taking the police up to and including the Supreme Court, was not actually my job to do, it was my government’s job to do, and I had already paid them for doing that job through my taxes, but they didn’t do it.”

Some changes to communications between the SIU and police were made as the legal challenge moved through the courts. For example, the government has prohibited witness officers from using the same lawyer as the subject officer — the officer responsible for causing death or serious injury.

“I want to express my sympathy to Ms. Schaeffer,” said Ministry of the Attorney General spokeswoman Jenna Mannone. “It is incredibly hard to lose a loved one and I recognize that these were especially difficult circumstances.”

It was shortly after noon on June 24, 2009, when two OPP officers from the Pickle Lake detachment, about an eight-hour drive north of Thunder Bay, arrived at 30-year-old Levi Schaeffer’s isolated camping area, reportedly looking for a stolen boat. One was never located.

“There was an interaction of sorts,” wrote Ian Scott, then the SIU director, in the public portion of his report included in a Sept. 28, 2009, news release, “and the subject officer discharged his firearm at Mr. Schaeffer, causing his death.

“Beyond that, I am not sure what happened.”

Const. Kris Wood, who killed Levi, was told to prepare notes that only the police association lawyer would review, Scott wrote. After the notes had been approved, Wood then wrote in his memo book, two days later, an account that was the combination of his confidential notes to the lawyer and the discussions with him.

Acting Sgt. Mark Pullbrook, the other officer on scene, was advised to do the same. Neither officer shared their first set of notes with the SIU.

“The SIU director . . . concluded that he had no information from which he could base his conclusion as to what happened in the death of Mr. Schaeffer as a result of counsel’s involvement,” Moldaver would later write in the Supreme Court ruling. “Surely this is not the stuff out of which public confidence is built.”

Falconer, who has represented a number of families of people killed by police, goes as far as calling it a “corrupt practice” that had festered for too long.

“It is troubling, the kind of burden that members of the public should have to bear to fix what so clearly should be fixed by government, and that is a reality in the policing world,” he said. “Far from Ruth’s situation being unique, we live in a society where the police lobby is so powerful that, generally, political leaders follow. They don’t lead.”

He believes the government should compensate the Schaeffer and Minty families.

“I’m not against police officers, I’m against what happened in this situation,” said Douglas Minty’s sister, Diane Pinder. “They have unlimited funds. We don’t. And they fight you each step of the way.”

The families’ case was thrown out in Superior Court in Toronto, but they won at the Court of Appeal, after which the police took them to the Supreme Court, where their’ victory was upheld.

“My son never embarrassed me,” said Ruth of Levi, who became ill when he was about 18 or 19 years old. “My son had an illness. If he had cancer and found himself in pain in public, then somebody would help him. He had a mental illness and sometimes found himself in pain in public, but nobody helps.”

She said she soon realized the mental health system was not prepared to let him live a full and satisfying life. Quite adept in the great outdoors, Ruth discussed with Levi the possibility of living on his own in a secluded area.

She had just saved up enough money to buy him a piece of land, as well as one for herself, and false teeth, when the knock came at her door.

“I opened, took one look at the guy and said, ‘It’s my son, is he dead?’ I just knew.”

From what she understands — as a result of the legal challenge and the coroner’s inquest into her son’s death — Levi had gone down to the water when the two officers arrived in Wood’s personal boat, asking if he could be of assistance. She believes that at some point, Levi panicked. According to Wood’s account, Levi was advancing with a knife.

“I think I would panic if I was on a small area of land with two armed men, one of whom was becoming very aggressive toward me,” she said. (Wood and Pullbrook declined to comment through an OPP spokesman.)

Before her son died, Ruth was in the happiest period of her life. She was working as a human-rights worker with the Elizabeth Fry Society, often at the Lindsay jail, and spending a lot of time with her two daughters and grandchildren.

“I had stopped worrying so much about my son,” she said. “I had been terribly worried about him for a long time and didn’t really expect him to make it, and then he decided on a dream and started working actively toward it.”

That life would be shattered by Levi’s death and the subsequent court case, leaving Ruth a shell of her former self. She had to give up her home and move in with friends and then a rooming house. She sold practically everything she owned. And those savings for the pieces of land — between $20,000 and $30,000 — were completely depleted.

She now rents a small two-room apartment, but trying to fit her six grandchildren inside isn’t even an option. She’s unemployed, living on government assistance, and regularly sees a psychotherapist and takes classes to manage her PTSD.

“Because (the government) doesn’t do their job, they destroy people. They have completely financially destroyed me, and they have also made my recovery process a lot harder than it should have been,” she said.

Would Levi be proud of his mother’s fight? She believes so. He was proud of all of his family members, maintaining strong bonds with his two sisters.

If he were alive today, Ruth knows exactly what he would be doing.

“He would be on that piece of land, in his cabin. Happy.”

https://www.thestar.com/news/gta/2016/0 ... death.html

http://www.kitchenerpost.ca/news-story/ ... n-s-death/