Shaping Civilian Oversight
From time to time the SIU is involved in civil cases which impact its operations and more broadly the area of civil oversight. There are currently three such cases:
Leave to appeal in the Schaeffer et al v. Wood et al matter was granted by the Supreme Court of Canada on June 28, 2012 and a tentative date of April 19, 2013 has been set for the hearing of this appeal. Attached are the facta (written argument) of the SIU filed with the Court. The SIU takes the position that police officers’ notes in SIU incidents should be written independently and contemporaneously without prior consultation with a lawyer.
- Supreme Court: Facta of Ian Scott, Director of the SIU Respondent on Appeal and Appellant on Cross-Appeal
Peel Regional Police Chief Michael Metcalf (retired) sought a court declaration prohibiting the SIU from continuing its investigation of an historical sexual assault allegation against a retired Peel Regional police officer. The police service argued that the SIU was without statutory authority to investigate incidents that pre-dated the Unit’s formation in 1990 or incidents involving retired officers. On February 11, 2011, a judge of the Ontario Superior Court ruled that the SIU did in fact have the jurisdiction to investigate both incidents that occurred before the Unit came into existence and incidents involving retired police officers. The applicant appealed the decision to the Ontario Court of Appeal, which heard the case in December 2011. The Court of Appeal affirmed the lower court’s ruling, confirming that the SIU could investigate retired police officers and pre-1990 incidents. The decisions of the Superior Court of Ontario and the Ontario Court of Appeal are attached.
In the Schaeffer et al. v. Wood et al. matter, the officers maintain that they have an unfettered right to consult with counsel in advance of the preparation of their notes and are seeking leave to appeal the decision to the Supreme Court of Canada. The SIU is of the view that no consultation whatsoever is permissible and are seeking leave to make that argument before the Supreme Court of Canada. The Supreme Court has yet to rule on whether it will hear the case.
The SIU’s factum on the leave to appeal application before the Supreme Court is attached.
In the Schaeffer litigation, the families of two men shot in separate incidents brought a court application for a declaration that certain practices of the Ontario Provincial Police in those SIU cases breached the ‘duty to cooperate’ provisions of the Police Services Act. Notably, they argued that the current practice of having one lawyer represent all involved officers, advising them on writing up their notes and permitting a first set of notes to be written that were not disclosed to the SIU due to a claim of solicitor-client privilege, breached the segregation and non-communication provisions of the SIU regulations to the Police Services Act. The SIU supported the applicants’ position. The initial application was heard in May 2010 before The Honourable Madam Justice Low of the Superior Court of Justice. On June 23, 2010, she dismissed the application, in part, on the basis that the issues were not justiciable ones because there were other ways of bringing these matters before the courts.
The families appealed the decision to the Ontario Court of Appeal and the case was heard in September 2011. On November 15, 2011, the Court of Appeal overturned the Superior Court’s decision and held that the families did in fact have standing to seek the declaration. They went on to find that while officers are entitled to speak to a lawyer, prior to writing their notes, about their rights during an SIU investigation, the law does not permit police officers involved in an SIU investigation to have a lawyer vet their notes or to assist them in the preparation of their notes.
The officers sought leave to appeal the decision from the Supreme Court of Canada, arguing that officers should have an unfettered right to counsel in relation to their note taking. The SIU also sought leave to appeal, submitting that even the limited right to counsel permitted by the Ontario Court of Appeal went too far. The Supreme Court has agreed to hear the appeal, and a hearing has been tentatively scheduled for April 19, 2013.
The Ontario Court of Appeal’s decision is attached below.
In the Wellington matter, the family of a young man shot by a member of the Toronto Police Service sued the SIU for negligent investigation. The province on behalf of the SIU brought a court application to have the lawsuit dismissed on the basis that public investigators do not owe a private law duty of care to families of victims of crime in the conduct of criminal investigations. When the matter first came to court, the presiding judge dismissed the province’s application and the matter was appealed to the Ontario Divisional Court. On June 4, 2010, the majority of the Divisional Court panel dismissed the province’s appeal of the lower court decision. The province appealed to the Ontario Court of Appeal. That appeal was heard in February, 2010. In its decision, released in April 2011, the Court of Appeal agreed with the SIU position that public investigators do not owe a private law duty of care to the families of victims of crime in the course of criminal investigations. Leave to appeal that decision was denied by the Supreme Court of Canada.
The Court of Appeal’s decision is attached.