Schaeffer et al. v. Wood et al., (2013) 312 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 19, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 312 O.A.C. 1 (SCC);2013 SCC 71

Schaeffer v. Wood (2013), 312 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] O.A.C. TBEd. DE.027

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)

(34621; 2013 SCC 71; 2013 CSC 71)

Indexed As: Schaeffer et al. v. Wood et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

December 19, 2013.

Summary:

Police involved in two separate fatal incidents were subject to independent investigations by the Special Investigations Unit (SIU). The applicants (family members of the two deceased) sought a declaratory judgment that, inter alia, the police officers involved were not entitled to obtain legal assistance in preparing their notes respecting the incidents.

The Ontario Superior Court, in a judgment reported [2010] O.T.C. Uned. 3647, dismissed the application on the grounds that the applicants lacked standing to seek declaratory relief, and the issues raised were moot and not justiciable. The applicants appealed.

The Ontario Court of Appeal, in a judgment reported (2011), 284 O.A.C. 362, allowed the appeal, finding that (1) the applicants had standing to seek declaratory relief; (2) the issues raised were justiciable, not moot; and (3) it was appropriate for the court to rule on certain substantive issues without returning the matter to the Superior Court. The court held that police officers involved in an SIU investigation were not entitled to have a lawyer vet their notes or assist in preparing them. However, the officers were entitled to legal advice respecting the nature of their rights and duties respecting SIU investigations, provided that obtaining that advice did not impede the completion of their notes before the end of their shift. The officers appealed the finding that legal advice was limited to "basic legal advice" prior to completing their notes. The SIU Director cross-appealed, arguing that the court erred in finding that police officers were entitled to even "basic legal advice" before completing their notes.

The Supreme Court of Canada, Fish, LeBel and Cromwell, JJ., dissenting on the cross-appeal, dismissed the appeal and allowed the cross-appeal. Under the scheme crafted in Ontario, a police officer who witnessed or participated in an incident under investigation by the SIU was not entitled to speak with a lawyer, even for "basic legal advice", before preparing his or her notes concerning the incident.

Police - Topic 2215

Duties - General duties - To make notes (incl. of incidents) - Police officers involved in two fatal shootings were subject to investigation by the Special Investigations Unit (SIU) - In both cases, the subject officers and witness officers were advised not to write out their notes respecting the incidents until they first consulted with counsel, who then vetted the notes before they were provided to the SIU - Section 7(1) of the Police Services Act Regulations (Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit) gave officers the right to consult with legal counsel and to have counsel present during SIU interviews - Officers had a statutory obligation to cooperate in an SIU investigation, provide their notes respecting the incident and submit to an SIU investigation - Section 9 required officers to make full notes "in accordance with his or her duty" - The Supreme Court of Canada held that "s. 7(1) does not provide a freestanding entitlement to consult with counsel at the note-making stage. I reach this conclusion for three reasons. 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. 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. 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." - Access to counsel prior to completing those notes "creates a real risk that the focus of an officer's notes will shift away from his or her public duty under s. 9, i.e. making accurate, detailed, and comprehensive notes, and move toward his or her private interest , i.e. justifying what has taken place - the net effect being a failure to comply with the requirements of the s. 9 duty." - Further, police officers were not entitled "to receive basic legal advice as to the nature of their rights and duties prior to completing their notes" - See paragraphs 29 to 88.

Police - Topic 4065

Internal organization - Discipline of members - Investigation (incl. right to counsel) - [See Police - Topic 2215 ].

Cases Noticed:

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 533; 334 N.R. 55; 2005 SCC 26, refd to. [para. 33].

R. v. Sussex Justices, Ex. P. McCarthy, [1924] 1 K.B. 256, refd to. [para. 48].

R. v. Bailey (N.A.) (2005), 381 A.R. 42; 49 Alta. L.R.(4th) 128; 2005 ABPC 61, refd to. [para. 63, footnote 3].

R. v. Zack, [1990] O.J. No. 5747 (C.J.), refd to. [para. 63, footnote 3].

R. v. Stewart, 2012 ONCJ 298, refd to. [para. 63, footnote 3].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 63, footnote 3].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 99].

R. v. Hall (D.S.), [2002] 3 S.C.R. 309; 293 N.R. 239; 165 O.A.C. 319, refd to. [para. 107].

R. v. Nguyen (Y.V.) (1997), 97 B.C.A.C. 86; 157 W.A.C. 86; 119 C.C.C.(3d) 269 (C.A.), refd to. [para. 107].

Restrictive Trade Practices Commission et al. v. Irvine et al., [1987] 1 S.C.R. 181; 74 N.R. 33, refd to. [para. 109].

Statutes Noticed:

Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit - see Police Services Act Regulations (Ont.).

Police Services Act Regulations (Ont.), Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, Reg. 267/10, sect. 7(1), sect. 9(1), sect. 9(3) [para. 21].

Authors and Works Noticed:

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 (1998), pp. 4 [para. 39]; 13, 23, 24 [para. 96]; 90 [para. 55].

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. (2003), p. 51 [para. 56].

Clewley, Gary, Officers and the SIU (2009), 4 The Back-Up 25, generally [para. 74].

Halsbury's Laws of England (4th Ed. 1973), vol. 3, para. 1137 [para. 109].

LeSage, Patrick J., Report regarding SIU Issues (2011), p. 1 [para. 42].

Marin, André, Oversight Unseen: Investigation in the Special Investigations Unit's operational effectiveness and credibility (2008), para. 23 [para. 35].

Ontario, Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report on Charge Screening, Disclosure and Resolution Discussions (1993), pp. 151, 153 [para. 64].

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 2nd Sess., 34th Parl., May 17, 1990, p. 1318 [para. 37].

Ontario Police College, Basic Constable Training Program - Student Workbook (2008), p. 2 [para. 76].

Ontario, Race Relations and Policing Task Force, The Report of the Race Relations and Policing Task Force (1989), pp. 147, 150 [para. 36].

Orkin, Mark M., Legal Ethics (2nd Ed. 2011), p. 17 [para. 109].

Reith, Charles, The Blind Eye of History: a study of the origins of the present police era (1975), p. 163 [para. 52].

Salhany, Roger E., Report of the Taman Inquiry into the Investigation and Prosecution of Derek Harvey-Zenk (2008), p. 133 [para. 65].

Salhany, Roger E., The Police Manual of Arrest, Seizure & Interrogation (7th Ed. 1997), pp. 270 to 278 [para. 68].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), generally [para. 99].

Counsel:

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.

Solicitors of Record:

Greenspan Humphrey Lavine, Toronto, Ontario, for the appellants/respondents on cross-appeal;

Falconer Charney, Toronto, Ontario, for the respondents/appellants on cross-appeal, Ruth Schaeffer, Evelyn Minty and Diane Pinder;

Sack Goldblatt Mitchell, Toronto, Ontario, for the respondent/appellant on cross-appeal, Ian Scott, Director of the Special Investigations Unit;

Ministry of Community Safety and Correctional Services, Orillia, Ontario, for the respondent/respondent on cross-appeal, Julian Fantino, Commissioner of the Ontario Provincial Police;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the CanadianCivil  Liber-ties Association;

Fasken Martineau DuMoulin, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Aboriginal Legal Services of Toronto LegalClinic, Toronto, Ontario, for the intervener, the Aboriginal Legal Services of Toronto Inc.;

Webber Schroeder Goldstein Abergel, Ottawa, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Independent Investigations Office of British Columbia, Surrey, British Columbia, for the intervener, Richard Rosenthal, Chief Civilian Director of the Independent Investigations Office of British Columbia;

Stevensons, Toronto, Ontario, for the intervener, the Urban Alliance on Race Relations;

David B. Butt, Toronto, Ontario, for the interveners, the Canadian Police Association and the Police Association of Ontario.

This appeal was heard on April 19, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On December 19, 2013, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Moldaver, J. (McLachlin, C.J.C., Abella, Rothstein, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 90;

LeBel and Cromwell, JJ. (Fish, J., concurring), dissenting on cross-appeal - see paragraphs 91 to 111.