Wood v. Schaeffer

Wood v. Schaeffer
Collection
Supreme Court Judgments
Date
2013-12-19
Neutral citation
2013 SCC 71
Report
[2013] 3 SCR 1053
Case number
34621
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Statutes
Notes
SCC Case Information: 34621
Decision Content
SUPREME COURT OF CANADA
Citation: Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053
Date: 20131219
Docket: 34621
Between:
Police Constable Kris Wood, Acting Sergeant Mark Pullbrook and Police Constable Graham Seguin
Appellants/Respondents on cross-appeal
and
Ruth Schaeffer, Evelyn Minty, Diane Pinder and Ian Scott, Director of the Special Investigations Unit
Respondents/Appellants on cross-appeal
and
Julian Fantino, Commissioner of the Ontario Provincial Police
Respondent/Respondent on cross-appeal
- and -
Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Aboriginal Legal Services of Toronto Inc., Criminal Lawyers’ Association (Ontario), Richard Rosenthal, Chief Civilian Director of the Independent Investigations
Office of British Columbia, Urban Alliance on Race Relations, Canadian Police Association and Police Association of Ontario
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 90)
Joint Dissenting Reasons on
Cross-Appeal:
(paras. 91 to 111)
Moldaver J. (McLachlin C.J. and Abella, Rothstein, Karakatsanis and Wagner JJ. concurring)
LeBel and Cromwell JJ. (Fish J. concurring)
Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053
Police Constable Kris Wood, Acting
Sergeant Mark Pullbrook and Police
Constable Graham Seguin Appellants/Respondents on cross‑appeal
v.
Ruth Schaeffer, Evelyn Minty,
Diane Pinder and Ian Scott, Director
of the Special Investigations Unit Respondents/Appellants on cross‑appeal
- and -
Julian Fantino, Commissioner of the
Ontario Provincial Police Respondent/Respondent on cross-appeal
and
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association,
Aboriginal Legal Services of Toronto Inc.,
Criminal Lawyers’ Association (Ontario),
Richard Rosenthal, Chief Civilian Director of the
Independent Investigations Office of British Columbia,
Urban Alliance on Race Relations, Canadian
Police Association and Police Association of Ontario Interveners
Indexed as: Wood v. Schaeffer
2013 SCC 71
File No.: 34621.
2013: April 19; 2013: December 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Police — Investigations — Special Investigations Unit — Right to counsel — Duty to make notes — Whether police officers have right to consult with counsel before making notes on incident — Whether police officers are entitled to basic legal advice as to nature of rights and obligations in connection with incident — Police Services Act, R.S.O. 1990, c. P‑15, s. 113 — Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10, ss. 7, 9.
This case arises from two independent fatal incidents in which civilians were shot by the police. In both cases, the involved officers were instructed by superior officers to refrain from making their police notes on the incident until they had spoken with counsel. The families of the two civilians who were killed brought an application seeking an interpretation of various provisions of the Police Services Act, R.S.O. 1990, c. P‑15, and Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10. For purposes of this appeal, the pertinent issue raised by the families was whether the legislative scheme permitted officers to consult with counsel before completing their notes.
The families’ application was dismissed by the Superior Court on procedural grounds. The Court of Appeal dealt with the matter on its merits, and held that the regulation did not permit police officers to seek the assistance of counsel in completing their notes. However, it found that, under the regulation, officers were entitled to receive basic legal advice as to the nature of their rights and obligations regarding the incident and the Special Investigations Unit (“SIU”) investigation before completing their notes. The officers argue that those limits are too restrictive. The Director of the Special Investigations Unit cross‑appeals, arguing that police officers are not entitled to legal advice, basic or otherwise, prior to completing their notes.
Held (LeBel, Fish and Cromwell JJ. dissenting in the cross‑appeal): The appeal should be dismissed and the cross‑appeal should be allowed.
Per McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: Police officers are entrusted by the communities they serve with significant legal authority, including, in some circumstances, the power to use deadly force against their fellow citizens. The indispensible foundation for such authority is the community’s steadfast trust in the police. But that trust can be tested when a member of the community is killed or seriously injured at the hands of a police officer. 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. 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. When the community’s trust in the police is at stake, it is imperative that the investigatory process be — and appear to be — transparent.
Under the Act and regulation, a police officer who witnessed or participated in an incident under investigation by the SIU is not permitted to speak with a lawyer before preparing his or her notes concerning the incident. While officers, in their capacity as ordinary citizens, may be free at common law to consult with counsel as and when they see fit, we are considering them here in their professional capacity as police officers who are involved in an SIU investigation. In these circumstances, the point of departure is not the common law, but the regulation which governs these situations and which comprehensively sets out their rights and duties, including their entitlement to counsel. So long as police officers choose to wear the badge, they must comply with their duties and responsibilities under the regulation, even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens.
Read in the full light of its history and context, it is apparent, for three reasons, that the regulation was not meant to permit officers to consult with counsel before they complete their notes.
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. The legislative scheme specifically combats the problem of appearances that flowed from “police investigating police” by placing investigations of the police in the hands of civilians. Allowing officers to fully consult with counsel at the note‑making stage creates an “appearances problem” similar to the one that the SIU was created to overcome: 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 fulfill 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.
Second, the legislative history demonstrates that s. 7(1) was never intended to create a freestanding entitlement to consult with counsel that extended to the note‑making stage. There was no discussion of a role for counsel at the note‑making stage in any of the reports related to the regulation, let alone a recommendation to that effect. While the government has long been aware of the practice of officers consulting with counsel prior to preparing their notes, the government is not required to amend regulations to forbid practices that are already inconsistent with the legislative scheme.
Third, consulting with counsel at the note‑making stage impinges on the ability of police officers to prepare accurate, detailed and comprehensive notes in accordance with their duty under s. 9 of the regulation. Sections 9(1) and 9(3) of the regulation require witness and subject officers to “complete in full the notes on the incident in accordance with [their] duty”. While neither the regulation nor the Act define the duty to make notes, police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Permitting officers to consult with counsel before preparing their notes 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 accord with the officer’s duty.
Without in any way impugning the integrity of counsel or police officers, even the perfunctory consultation contemplated by the Court of Appeal is liable to cause the same threat to public confidence, if on a somewhat diminished scale, because the initial consultation is privileged. A loss of public trust would seem a high price to pay for an initial consultation that is limited to providing officers with basic information that can easily be conveyed in ways that do not generate any appearance problem. Nothing in the regulation prevents officers who have been involved in traumatic incidents from speaking to doctors, mental health professionals, or uninvolved senior police officers before they write their notes, and the regulation empowers the chief of police to allow officers more time to complete their notes when required. Once officers have completed their notes and filed them with the chief of police, they are free to consult with counsel.
Per LeBel, Fish and Cromwell JJ. (dissenting in the cross‑appeal): Everyone is at liberty to consult counsel whenever they wish unless doing so is precluded by lawful authority or inconsistent with their duty. 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.
Interpreting s. 7(1) of the regulation purposively requires that we give effect to police officers’ freedom to consult counsel and consider the importance of the SIU’s mandate to enhance public confidence in the police. The plain wording of s. 7(1) grants the right to consult with legal counsel and the right to have legal counsel present during an SIU interview. Since this wording does not oust the rights that police officers would otherwise enjoy as ordinary citizens, and since the potential tension between the right to consult and the duty of the officer to write complete and independent notes can be resolved, there is no need to completely eliminate a police officer’s liberty to consult counsel.
We must trust that lawyers will know that they cannot give advice about the contents and drafting of the notes, which must remain the result of a police officer’s independent account of the events. However, the officer could be advised that he or she is required to complete notes of the incident prior to the end of his or her tour of duty and submit them to the chief of police unless excused by the chief of police; that the chief of police will not pass the notes of a subject officer on to the SIU, but will pass the notes of a witness officer on to the SIU; that the officer will be required to answer questions from the SIU investigators; that the officer will be entitled to consult counsel prior to the SIU interview and to have counsel present during the interview; and that the notes should provide a full and honest record of the officer’s recollection of the incident in the officer’s own words. This brief, informative conversation might not be as meaningful as comprehensive legal advice on the relationship between an officer’s notes and potential liability, but it might help to remind an officer of his or her duties in the circumstances and put the officer at ease after having experienced a potentially traumatic incident.
Cases Cited
By Moldaver J.
Referred to: Bristol‑Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Bailey, 2005 ABPC 61, 49 Alta. L.R. (4th) 128; R. v. Zack, [1999] O.J. No. 5747 (QL); R. v. Stewart, 2012 ONCJ 298 (CanLII); R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657.
By LeBel and Cromwell JJ. (dissenting on cross‑appeal)
Referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Nguyen (1997), 119 C.C.C. (3d) 269; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 10 (b).
Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10, ss. 1(1) “subject officer”, “witness officer”, 6(1), (2), 7, 8(1), (2), 9, 10(3)(b), (c), 12.
Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 673/98, ss. 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13.
Police Services Act, R.S.O. 1990, c. P.15, ss. 42, 113(3), (5), (7), (9).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3).
Authors Cited
Adams, George W. Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit. Toronto: Ministry of the Attorney General, 1998.
Adams, George W. Review Report on the Special Investigations Unit Reforms prepared for the Attorney General of Ontario by The Honourable George W. Adams, Q.C. Toronto: Ministry of the Attorney General, 2003.
Clewley, Gary. “Officers and the SIU” (2009), 4 The Back‑Up 25.
Halsbury’s Laws of England, 4th ed., vol. 3. London: Butterworths, 1973.
LeSage, Patrick J. Report regarding SIU Issues. Toronto: Ministry of the Attorney General, 2011.
Marin, André. Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility. Toronto: Ombudsman Ontario, 2008.
Ontario. Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto: The Committee, 1993.
Ontario. Legislative Assembly. Official Report of Debates (Hansard), 2nd Sess., 34th Parl., May 17, 1990, p. 1318.
Ontario. Race Relations and Policing Task Force. The Report of the Race Relations and Policing Task Force. Toronto: The Task Force, 1989.
Orkin, Mark M. Legal Ethics, 2nd ed. Toronto: Canada Law Book, 2011.
Reith, Charles. The Blind Eye of History: a study of the origins of the present Police era. Montclair, New Jersey: Patterson Smith, 1975.
Salhany, Roger E. Report of the Taman Inquiry into the Investigation and Prosecution of Derek Harvey‑Zenk. Winnipeg: Taman Inquiry, 2008.
Salhany, Roger E. The Police Manual of Arrest, Seizure & Interrogation, 7th ed. Scarborough, Ont.: Carswell, 1997.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Sharpe, Armstrong and Rouleau JJ.A.), 2011 ONCA 716, 107 O.R. (3d) 721, 284 O.A.C. 362, 341 D.L.R. (4th) 481, 278 C.C.C. (3d) 57, 246 C.R.R. (2d) 181, [2011] O.J. No. 5033 (QL), 2011 CarswellOnt 12463, setting aside a decision of Low J., 2010 ONSC 3647 (CanLII), [2010] O.J. No. 2770 (QL), 2010 CarswellOnt 4564. Appeal dismissed and cross‑appeal allowed, LeBel, Fish and Cromwell JJ. dissenting on cross‑appeal.
Brian H. Greenspan, David M. Humphrey and Jill D. Makepeace, for the appellants/respondents on cross‑appeal.
Julian N. Falconer and Sunil S. Mathai, for the respondents/appellants on cross‑appeal Ruth Schaeffer, Evelyn Minty and Diane Pinder.
Marlys A. Edwardh, Daniel Sheppard and Kelly Doctor, for the respondent/appellant on cross‑appeal Ian Scott, Director of the Special Investigations Unit.
Christopher Diana and Kenneth W. Hogg, for the respondent/respondent on cross-appeal Julian Fantino, Commissioner of the Ontario Provincial Police.
Wendy J. Wagner and Ryan W. Kennedy, for the intervener the Canadian Civil Liberties Association.
Andrew I. Nathanson and Gavin R. Cameron, for the intervener the British Columbia Civil Liberties Association.
Christa D. Big Canoe and Emily R. Hill, for the intervener the Aboriginal Legal Services of Toronto Inc.
Howard L. Krongold and Michael Spratt, for the intervener the Criminal Lawyers’ Association (Ontario).
Marian K. Brown, for the intervener Richard Rosenthal, Chief Civilian Director of the Independent Investigations Office of British Columbia.
Maureen L. Whelton and Neil Wilson, for the intervener the Urban Alliance on Race Relations.
David B. Butt, for the interveners the Canadian Police Association and the Police Association of Ontario.
The judgment of McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered by
Moldaver J. —
I. Introduction
[1] Police officers are entrusted by the communities they serve with significant legal authority, including, in some circumstances, the power to use deadly force against their fellow citizens. The indispensible foundation for such authority is the community’s steadfast trust in the police. Each and every day, thousands of officers across this country work diligently to earn that trust, often putting their own lives on the line.
[2] But that trust can be tested — sometimes severely — when a member of the community is killed or seriously injured at the hands of a police officer. For that reason, the citizens of Ontario have charged an all-civilian Special Investigations Unit (“SIU”) with the delicate task of investigating such tragic incidents. The SIU’s mission is clear: it is to determine independently and transparently what happened and why, in the hope of providing the community with answers.
[3] 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.
[4] This appeal concerns one aspect of the way in which the SIU conducts its investigations. The question presented is whether, under the scheme that Ontario has crafted, a police officer who witnessed or participated in an incident under investigation by the SIU is entitled to speak with a lawyer before preparing his or her notes concerning the incident. In my view, the answer is “no”.
[5] The legislative scheme at issue here reflects the promise of a series of public inquiries and task forces urging reform of the old approach of “police investigating police”. Time and time again, reports of these groups have underscored the importance of creating an independent body charged with transparently investigating whether what happened reflected a breach of the public’s trust or not.
[6] 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.
[7] Manifestly, the legislature did not intend to provide officers with an entitlement to counsel that would undermine this transparency. The SIU’s governing regulation hews closely to the specific recommendations of those tasked with proposing reforms — down to many of its specific provisions. Read in the full light of its history and context, it is apparent that the regulation was not meant to afford officers an entitlement to consult with counsel before they complete their notes.
[8] Nor is such an entitlement consistent with an officer’s duties under the legislative scheme. Such an expansive understanding of the entitlement to counsel impinges on the ability of police officers to prepare accurate, detailed, and comprehensive notes in accordance with their duty. 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 accord with the officer’s duty.
[9] In the result, I would dismiss the appeal and allow the cross-appeal.
II. Facts
[10] This case arises from two independent fatal incidents in which Douglas Minty and Levi Schaeffer were shot by the police. The facts surrounding the incidents are not in dispute.
A. The Minty Investigation
[11] On June 22, 2009, Mr. Minty was shot to death by Cst. Seguin of the Ontario Provincial Police (“OPP”). That evening, Cst. Seguin had been dispatched to investigate an alleged assault committed by Mr. Minty on a door-to-door salesman. When Cst. Seguin arrived at the scene, he approached Mr. Minty. Mr. Minty walked quickly toward Cst. Seguin. He had a knife in his hand. Cst. Seguin instructed Mr. Minty to put down or drop his weapon. Mr. Minty ignored these commands and “charged at Cst Seguin with his arm extended and the knife pointing at the officer” (SIU Report, A.R., vol. III, at p. 661). Cst. Seguin shot Mr. Minty five times.
[12] Cst. Seguin reported that shots had been fired and additional officers arrived at the scene. Sgt. Burton, Cst. Seguin’s senior officer, told all of the officers in the area that the SIU might consider them to be witnesses to the incident and instructed them not to make any further notes until they had spoken with counsel.
[13] On October 14, 2009, Mr. Scott, the Director of the SIU (the “SIU Director”), provided his report on the incident to the Attorney General. In his report, the SIU Director found that Cst. Seguin “had a reasonable apprehension of imminent death or grievous bodily harm” from which he could not escape and concluded that “the lethal force used was not excessive” in the circumstances (SIU Report, A.R., vol. III, at p. 661).
[14] Significant for present purposes, the SIU Director noted in his report that he would be raising several issues of concern with the OPP Commissioner. Among them, the SIU Director included his concern that all witness officers had been instructed not to write up their notes until they had spoken to counsel.
B. The Schaeffer Investigation
[15] On June 24, 2009, Mr. Schaeffer was shot and killed by Cst. Wood of the OPP. Cst. Wood and Acting Sgt. Pullbrook had traveled by boat to a rocky peninsula on Osnaburgh Lake to investigate a reported theft. When they arrived at the peninsula, the officers approached Mr. Schaeffer, questioned him, and attempted to detain him. According to the officers, Mr. Schaeffer physically resisted and pulled a knife out of his pocket. Both officers retreated as Mr. Schaeffer advanced towards them. Mr. Schaeffer did not comply with commands to drop the knife. At that point, Cst. Wood shot Mr. Schaeffer twice in the chest, killing him.
[16] After the shooting, Det. Sgt. Wellock was assigned to attend the scene. Before leaving the detachment, she instructed another officer to tell Cst. Wood and Acting Sgt. Pullbrook not to communicate with each other and not to write any notes until they had spoken to counsel. Cst. Wood and Acting Sgt. Pullbrook retained the same lawyer as their counsel and spoke to him, separately, several hours after the shooting. Their lawyer advised both officers to refrain from completing their notes and to provide him with a draft set of notes for his review. Both officers completed their notebook entries two days after the shooting, on June 26, 2009, after counsel had reviewed their draft notes.
[17] On September 25, 2009, the SIU Director provided his report on this incident to the Attorney General. He concluded that he could not form reasonable and probable grounds to believe that Cst. Wood had committed a criminal offence because he could not “place sufficient reliance on the information provided by Cst Wood or A/Sgt Pullbrook to decide what probably happened” (A.R., vol. III, at p. 516). The SIU Director expressed specific concern over the manner in which Cst. Wood and Acting Sgt. Pullbrook completed their notes. The SIU Director wrote:
This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been “approved” by an OPPA lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones — they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are association lawyer approved notes. Due to their lack of independence and contemporaneity, I cannot rely upon these notes nor A/Sgt Pullbrook’s interview based upon them for the truth of their contents.
I have a statutory responsibility to conduct independent investigations and decide whether a police officer probably committed a criminal offence. In this most serious case, I have no informational base I can rely upon. Because I cannot conclude what probably happened, I cannot form reasonable grounds that the subject officer in this matter committed a criminal offence. [Emphasis added; A.R., vol. III, at p. 517.]
III. Relevant Legislative Provisions
A. The Police Services Act
[18] The SIU was established by s. 113 of the Police Services Act, R.S.O. 1990, c. P.15. Section 113(5) of the Act empowers the SIU to “cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers”. The SIU Director cannot be a police officer or a former police officer, and SIU investigators cannot be current police officers (s. 113(3)). The SIU Director determines whether charges will be laid against police officers (s. 113(7)). Police officers are required by the Act to “co-operate fully” with the SIU in the conduct of investigations (s. 113(9)).
B. The Regulation
[19] The regulation governs the conduct of SIU investigations (Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10). Officers involved in an incident triggering an SIU investigation fall into two categories: officers whose conduct appears to have caused the death or serious injury are designated “subject officers”, and involved officers who are not subject officers are deemed to be “witness officers” (s. 1(1)).
[20] The regulation provides that all involved officers must be segregated from each other, to the extent practicable, until after the SIU has completed its interviews (s. 6(1)). The regulation also provides all officers with an entitlement to “consult” with legal counsel and to have counsel “present” during their SIU interviews (s. 7(1)), unless the SIU Director is of the opinion that waiting for counsel would cause an unreasonable delay in the investigation (s. 7(2)). Witness officers are required to meet with the SIU and answer all of its questions (s. 8(1)). Both subject and witness officers are required to complete their notes on the incident “in accordance with [their] duty” (s. 9(1) and (3)). However, only witness officers are required to provide their notes to the SIU (s. 9(1) and (3)). If a witness officer is later designated a subject officer by the SIU, the SIU is required to provide the officer with the original and all copies of his interview with the SIU and his officer notes (s. 10(3)(b) and (c)).
[21] The proper interpretation of the regulation lies at the heart of this appeal. The entitlement to counsel under s. 7(1) and the duty to make notes under s. 9(1) and (3) are of particular importance. These provisions read as follows:
7. [Right to counsel] (1) Subject to subsection (2), every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.
. . .
9. [Notes on incident] (1) A witness officer shall complete in full the notes on the incident in accordance with his or her duty and . . . shall provide the notes to the chief of police within 24 hours after a request for the notes is made by the SIU.
. . .
(3) A subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU.
IV. Proceedings Below
A. Superior Court of Justice for Ontario, 2010 ONSC 3647 (CanLII)
[22] Mr. Schaeffer’s mother, Ruth Schaeffer, and Mr. Minty’s mother and sister, Evelyn Minty and Diane Pinder (the “Families”) brought an application under Rule 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking “[d]eclaratory relief in the form of judicial interpretations and guidance in respect of those provisions of the Police Services Act and Regulations that govern the police duty to cooperate with investigations by the Special Investigations Unit” (A.R., vol. I, at p. 91). One of the issues raised by the Families was whether the legislative scheme permitted officers to consult with counsel before completing their notes. The Families named Cst. Seguin, Cst. Wood, Acting Sgt. Pullbrook (the “Officers”), OPP Commissioner Julian Fantino, the SIU Director, and the Ministry of Community Safety and Correctional Services as respondents.
[23] Prior to the hearing of the application on its merits, the Officers brought a motion to strike the application on the grounds that the application was not justiciable and that the Families lacked standing to bring it. Low J. allowed the Officers’ motion and struck the application. Before this Court, the Officers have abandoned these procedural arguments. It is therefore unnecessary to consider them further.
B. Court of Appeal for Ontario, 2011 ONCA 716, 107 O.R. (3d) 721
[24] The Families appealed to the Ontario Court of Appeal seeking to have the application decided on its merits. Sharpe J.A., writing for a unanimous court, held that the application was justiciable, that the Families had public interest standing, and that the Court of Appeal had jurisdiction to decide the substantive issues raised in the application without the need to remit the matter to the Superior Court.
[25] The Court of Appeal found that the assistance of counsel in the preparation of an officer’s notes “would be inconsistent with the purpose of police notes and with the duty imposed on police officers to prepare them” primarily because any legal advice received by the officer would be “geared to the officer’s own self interest, or the interests of fellow officers, rather than the officer’s overriding public duty” (paras. 71-72). As a result, the court concluded that s. 7(1) did not permit police officers to seek the assistance of counsel in completing their notes.
[26] However, in the Court of Appeal’s view, s. 7(1) of the regulation did entitle officers to “basic legal advice as to the nature of [their] rights and obligations in connection with the incident and the SIU investigation” (paras. 79 and 81).
V. Issue
[27] The Officers have appealed to this Court, asserting that the Court of Appeal erred in restricting the entitlement to counsel in s. 7(1) to nothing more than “basic legal advice”. The SIU Director has cross-appealed and takes the opposite view, arguing that, although the Court of Appeal was correct in holding that officers are not entitled to the assistance of counsel in the preparation of their notes, it erred in concluding that police officers are entitled to “basic legal advice” prior to completing their notes. The Families and the OPP Commissioner are content with the decision of the Court of Appeal and defend its correctness.
[28] The primary issue on appeal is whether s. 7(1) of the regulation entitles officers involved in incidents triggering SIU investigations to speak with counsel before completing their notes. Given my conclusion that the answer to this issue is no, I need not go on to consider the nature or extent of any such entitlement.
VI. Analysis
A. The Source of the Disputed Right to Counsel
[29] At the outset, it is important to be clear about the focus of our inquiry. This case concerns the scope of an entitlement to counsel that flows from a regulatory provision. We are not here concerned with the right to counsel that exists under s. 10 (b) of the Canadian Charter of Rights and Freedoms . No party has sought to determine whether witness or subject officers are “detained” within the meaning of s. 10 (b) during SIU investigations. Two of the interveners before this Court argued that the regulation triggers an officer’s right to counsel under s. 10 (b) of the Charter : see factums of the Canadian Civil Liberties Association and the Canadian Police Association. The SIU Director brought a motion to strike out the paragraphs of the interveners’ factums that raised this issue on the grounds that it had not been raised by any of the parties to this appeal, and the interveners were precluded from raising new issues on their own accord. I agree with the SIU Director that the s. 10 (b) issues are not properly before this Court, and would therefore allow the motion.
[30] Nor has any party questioned whether the right to silence or the common law confessions rule prevents an officer’s notes from being used against that officer in a subsequent criminal prosecution. Accordingly, I refrain from expressing any opinion on those issues. Finally, this case does not concern the liberty citizens generally enjoy at common law to consult with counsel as and when they see fit. The Officers argue that, no matter how s. 7(1) is interpreted, they are free at common law to consult with counsel in the preparation of their notes.
[31] With respect, I cannot agree. We are not here dealing with police officers in their capacity as ordinary citizens. We are dealing with them in their professional capacity as police officers who are the subject of an SIU investigation because they have been involved in an incident that has resulted in serious injury or death. In these circumstances, the point of departure is not the common law liberty to consult with counsel. Rather, we must begin with the regulation which governs these situations and which comprehensively sets out their rights and duties, including their entitlement to counsel.
[32] This starting point requires that an officer’s entitlement to counsel at the note-making stage be determined purposively, through the lens of the legislative scheme, thus ensuring the entitlement will be in harmony with the scheme and its overarching purpose. The first question, therefore, is whether s. 7(1) of the regulation, interpreted purposively, entitles officers to consult with counsel at the note-making stage. If such an entitlement is inconsistent with the regulation, then officers involved in SIU investigations are precluded from such consultations and we need not reach the question of what residual liberty officers may retain at common law. In short, so long as police officers choose to wear the badge, they must comply with their duties and responsibilities under the regulation, even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens.
B. The Proper Approach to Statutory Interpretation
[33] Answering the question posed by this appeal requires interpreting s. 7(1) of the regulation. The words of the provision must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the regulation, its objective, and the intention of the legislature. Critically, the provisions of the regulation must be read in light of the purpose of the enabling legislation — the Act. That purpose “transcends and governs” the regulation (Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 38). An interpretation of s. 7(1) that leads to conflict with another provision of the regulation, or that runs contrary to the purpose of the legislative scheme, must be avoided.
C. The Origin and Purpose of the Special Investigations Unit
[34] Before turning to the interpretation of s. 7(1) of the regulation, it is necessary to describe the origin and purpose of the legislative scheme. Doing so provides the context for the analysis that follows.
(1) The Creation of the Special Investigations Unit
[35] Before the SIU was formed, incidents of serious injuries or deaths involving police officers were investigated internally by the police (A. Marin, Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility (2008), at para. 23). This changed in 1990 with the enactment of the Act, which created the SIU.
[36] The creation of the SIU followed on the heels of a report released in 1989 by the Task Force on Race Relations and Policing (Report of the Race Relations and Policing Task Force (1989)). The Task Force was commissioned by the provincial government after two black Ontarians were fatally shot by the police in 1988. Its report contained a host of recommendations, one of which called for the creation of an “investigative team” comprised partially of civilians “to investigate police shootings” in the province (p. 150). The Task Force recommended civilian participation in investigations of the police because, in its view, the practice of “police investigating the police” could not “satisfy the public demand for impartiality” and fostered “a serious deterioration in the public confidence” (p. 147).
[37] The Solicitor General, during legislative debate on the Act, confirmed that the creation of the SIU was a direct response to the recommendation of the Task Force. He stated that the government had listened to the concerns raised by the Task Force and that the Act “addresses the concern, heard by the general public, of police investigating police” (Legislative Assembly of Ontario, Official Report of Debates (Hansard), 2nd Sess., 34th Parl., May 17, 1990, at p. 1318).
(2) The Creation of the Regulation
[38] The SIU operated without a regulation governing the conduct of its investigations until 1998 when O. Reg. 673/98, the predecessor to the regulation at issue in this appeal, was adopted following another government report. In 1997, the Honourable G. W. Adams was appointed by the government to consult with community and police organizations and to make consensus-based recommendations for improving the relationship between the SIU and the police.
[39] Mr. Adams released his report in 1998 (Consultation Report Concerning Police Cooperation with the Special Investigations Unit (1998) (“Adams 1998”)). In his report, Mr. Adams reco