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
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;"
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
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.
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