Relatives of men killed by police lose court fight over officers' note taking

June 23, 2010
Colin Perkel, The Canadian Press

TORONTO - Families of two men shot dead by police in Ontario had no right to ask the courts to intervene in how officers involved in such incidents prepare their notes, a judge ruled Wednesday.

In dismissing the case, Ontario Superior Court Justice Wailan Low said the families had not shown any legal standing to press their case.

Rather, Low ruled, the issues in dispute were a matter of government policy, not law.

"It is not the proper function of this court to act as the policy maker of last resort," Low wrote in her decision.

"The court's function is to adjudicate issues which are both justiciable and within its jurisdiction."

Julian Falconer, who acted for the families, had no immediate comment on the decision, saying he was still consulting his clients.

The families had asked the court for a declaration that the officers involved in killing their relatives had violated the law around how police co-operate with the province's Special Investigations Unit, which probes such cases.

They asserted, among other things, that allowing the officer who pulled the trigger and officers who witnessed the incident to consult the same lawyer effectively amounted to collusion.

They also said the officers first provided notes to their lawyer, before turning them over to the civilian investigators.

Police groups argued the officers were simply exercising the same rights as any other citizen — the right to consult a lawyer of their choosing.

Low agreed.

"No duty is owed by the officer to any particular citizen in relation to the exercise of his right to counsel," the judge wrote.

In dismissing the application heard in May, Low said the families of Doug Minty, 59, and Levi Schaeffer, 30, had shown neither a private nor a public interest in the matter and hence could not turn to the courts.

Ontario Provincial Police officers shot Minty and Schaeffer dead in separate incidents a year ago. The SIU cleared the officers, saying it could not determine what had happened because the police notes turned over to investigators were unreliable.

In launching the application, family members had said they were looking to find out exactly what happened to their loved ones.

Minty, of Elmvale, Ont., who was mentally challenged, was shot five times outside his home, apparently after threatening the officer with a small utility knife.

Two days later, Schaeffer, of Peterborough, Ont., who had mental-health issues, was shot dead at a remote lake in northern Ontario following an altercation with two officers.

Lawyers pulled from hearing into whether officers break laws

May 13, 2010
Robyn Doolittle, Toronto Star

Attorney General Chris Bentley is being accused of bowing to police pressure following a last-minute decision to pull ministry support from a controversial court case, which will rule whether officers routinely break the law when dealing with the Special Investigations Unit.

Four lawyers, including one of the ministry’s most senior counsel, had been representing SIU director Ian Scott in the proceedings. But late Wednesday, just hours before the hearing was scheduled to begin, the SIU – an arm’s length branch of the ministry – was told to find its own representation. The SIU investigates when a civilian is seriously injured or killed by a police officer.

MPP Peter Kormos, NDP critic for Community Safety and Correctional Services, said it looks as though the Attorney General is succumbing to police pressure.

“Something is seriously amiss here and it should be disturbing to everyone. The police seem to be able to call the shots with respect to the ministry of the attorney general,” he said.

The ministry did not respond to an interview request.

Scott has asked a judge to find that OPP officers and Commissioner Julian Fantino violated a section of the police act pertaining to SIU probes.

In court filings, he has called for an end to the longstanding practice of officers having their notes and comments vetted by a police union lawyer before being interviewed by the SIU. He has also taken issue with the fact that often one lawyer represents all the officers involved, including witnesses. Because lawyers are legally obligated to share information, Scott has argued police officers are not properly being segregated.

The case, which was launched by the families of two mentally-ill men killed by OPP officers last summer, is significant because although it is focusing on these two incidents, the practice of note vetting is common across the province. If the judge agrees with Scott, it will have widespread ramifications for Ontario’s police community.

Early Wednesday, just hours before the lawyers were removed, OPP union president Karl Walsh sent out an internal memo blasting the SIU and “assistance of the Ministry of the Attorney General.”

“We will not be treated as second-class citizens and demand that the established protections already in place not are tampered with,” Walsh wrote. “I ask that you pay particular attention to this issue and encourage you to let your elected representatives know about this unwarranted challenge to our rights and our integrity.”

The memo also revealed that the OPP union, Toronto police union, Police Association of Ontario and the Ontario Association of Chiefs of Police have pooled legal resources to fight the application.

Earlier this week, Bentley said that the ministry had not taken a position on the issue, but behind-closed doors, the police community had expressed anger over the legal support of the SIU.

Toronto Police Association President Mike McCormack said the move has nothing to do with police pressure. Ministry of the Attorney General lawyers were representing both the SIU and Fantino in the case.

“So there’s an obvious conflict there, this is the right move,” he said.

Kormos countered that the OPP and Fantino are actually part of the solicitor general’s ministry, so if anything, the conflict is with the commissioner.

“It’s very peculiar. The SIU is a part of the Attorney General’s office. It seems to me that the Ministry of the Attorney General should be representing its own body,” he said.

SIU calls OPP, Fantino conduct illegal

May 11, 2010
Dave Seglins, CBC News

Ontario's top police watchdog is accusing Ontario Provincial Police Commissioner Julian Fantino and a number of his officers of breaking the law by failing to properly co-operate with probes into two separate fatal OPP shootings last summer.

Ian Scott, director of the Special Investigations Unit, accuses Fantino of failing to ensure officers promptly notified the SIU of one case last June. In a second incident, Scott accuses Fantino of failing to ensure officers were properly segregated by allowing them to consult the same lawyer and to prepare two sets of notes — only submitting a final version of events vetted by their lawyer.

In an unprecedented step, Scott, with the signed backing of four lawyers from Ontario’s Ministry of the Attorney General, is siding with the two grieving families.

They together head to court on Thursday to ask a judge to rule that Fantino and his officer broke regulations and the Ontario Police Services Act in their interaction with the SIU.

Family decries OPP delay in calling SIU

Douglas Minty, 59, who was mentally disabled, was shot five times by an OPP officer in Elmvale, Ont., on June 22, 2009. (CBC)Diane Pinder's mentally disabled brother, 59-year-old Douglas Minty, was shot five times by an OPP officer in Elmvale, Ont., on June 22, 2009.

Minty had become agitated as the result of a visit from a door-to-door salesman, and police were called to the house.

"My brother was very loved. He did not deserve this tragic end to his life," Pinder told CBC News. "We are looking for answers as to why this had to happen … and the answers that we've got … some of them have been unbelievable."

The SIU report on the incident concluded a single officer shot Minty five times after he wielded a small utility knife with a 2.5-inch blade. His family is suspicious of this account because the knife found at the scene had its blade retracted in a closed position.

More importantly, the Minty family questions why the OPP took one hour and 23 minutes to alert the SIU. During that time, however, OPP did call in supervisors, a media relations spokesperson and a lawyer from the Ontario Provincial Police Association. The OPP even took two key eyewitnesses away for a debriefing before alerting the SIU to take charge of the scene around the police shooting.

"The scene is in essence tainted. That is not the way it's supposed to work," said the Minty family's lawyer, Julian Falconer. He filed the application that has won support from the SIU and the ministry lawyers asking for a ruling on the conduct of the OPP.

"The commissioner has a personal responsibility to ensure immediate notification so that investigators can do their job," Falconer told CBC News. "How could the family in the Minty shooting have any confidence in what these police officers have done when these kinds of shenanigans happen after the shooting?"

Questions about OPP notes in 2nd shooting

Levi Schaeffer, 30, pictured with an unidentified friend, was camping near Osnaburgh Lake, Ont., in June 2009 when he got into an altercation with the OPP, which resulted in an officer shooting twice and killing him. (CBC)Ruth Schaeffer is a grieving mother who is also part of the court fight against the OPP commissioner. Her son, Levi Schaeffer, 30, who suffered from schizoaffective panic and personality disorder, set off last spring on a bicycle trip from Peterborough, Ont., to Pickle Lake in northwestern Ontario.

On June 24, 2009, he was camping near Osnaburgh Lake when he got into an altercation with the OPP, which resulted in an officer shooting twice and killing Schaeffer.

His mother told CBC News she has been denied "any proper or believable answers" about what happened.

The only two witnesses were the two OPP officers, who, after the SIU began investigating, despite rules demanding they be segregated, both hired the same lawyer. They both prepared two sets of notes. The first set was supplied to their lawyer for review and were never disclosed to the SIU. Based on those, the two officers then prepared a second set of notes as their official "police memo book" record of events which they did hand over to SIU investigators.

"The idea that an officer would maintain two sets of notes … one that his lawyer sees and provides input on and a second that is provided to investigators simply is unacceptable," said Falconer, who is also representing Schaeffer's family. "This does nothing but fosters suspicions."

In September 2009, the SIU director concluded that in this case, "this note-writing process flies in the face of two main indicators of reliability of notes: independence and contemporaneity." As a result, Scott concluded he could not reach any reasonable conclusions about what actually happened the day Schaeffer was shot and killed.

Scott has written a number of times to complain to Fantino about the use of a single lawyer to represent numerous officers during SIU probes, given that police chiefs and the commissioner are duty bound by the Police Services Act to ensure officers are segregated when identified by the SIU as either subject or witness officers in a serious incident.

Fantino refused comment to the CBC while the case is before the courts. But in a Sept. 30, 2009, letter to Scott now included in the court record, Fantino denied any dereliction of his duties.

"Your position as director of the SIU grants you no authority over how police notes are prepared," Fantino scolded. "Direction in that regard comes from a complex interaction of the police service's policies and procedures, legislative requirements and the charter rights of all citizens."

NDP calls on Fantino to resign

Controversy over police co-operation has dogged the SIU since the agency's inception in 1990. Two reports by former judge George Adams identified the need for reviews.

In 2008, Ontario Ombudsman Andre Marin (a former SIU director himself) called for a ban on the use of a single lawyer representing multiple officers "avoiding any potential for witness information to be tainted or tailored, intentional or otherwise."

But the court case this week marks a new point in the fierce fight over police accountability, said NDP justice critic Peter Kormos.

"We have a very peculiar, unprecedented scenario where Ministry of the Attorney General's lawyers say the OPP commissioner Fantino broke the law in the course of an SIU investigation," Kormos told CBC News. "It is remarkable and it cries out for Fantino’s resignation."

Lawyers who represent police officers involved in SIU investigations say the practice of representing multiple officers and the use of two sets of officers' notes is a long-standing one.

"It's a tempest in a bad teapot and a waste of judicial resources," said Gary Clewley, a Toronto-based lawyer who has defended police officers for decades.

Last summer, he published an advice article in the Hamilton police union's newsletter, writing, "I was tempted to have a pencil manufactured with the slogan 'shut the F up' embossed on it so that when police officers began to write their notes they would pause and first give me or their association a call."

Clewley categorically rejects ever coaching officers to change or invent stories in their official notes.

The case goes before a judge in a Toronto court on Thursday.

Lawyer-approved police notes illegal, SIU says

May 11, 2010
Robyn Doolittle, Toronto Star

Judge asked to find OPP’s Julian Fantino violated Police Services Act

The director of the Special Investigations Unit has intervened in a landmark court case that will decide whether police officers routinely break the law during SIU investigations.

Ian Scott has asked a judge to rule it is illegal for officers to have their notes and comments “approved” by a police union lawyer before being interviewed by the agency, which investigates cases of serious injury or death involving officers.

Critics of this longstanding practice say it provides an opportunity for collusion. Police counter that officers are simply being granted the same rights as a civilian under the Charter of Rights.

Scott has also raised concerns about officers being properly segregated from each other after an incident. In a move that has set off a firestorm in the policing world, Scott has asked the Superior Court judge to find that OPP Commissioner Julian Fantino violated the Police Services Act for allowing this practice to continue.

If the judge agrees, this would open the door for police chiefs across Ontario, including Toronto’s Bill Blair, to face police act charges.

“This is a very significant development in attempting to ensure some level of accountability in SIU investigations. The absence of leadership has been a major problem in this area and frankly it accounts for why it has festered and continued for so long,” said lawyer Julian Falconer.

Falconer represents the families of two mentally disabled men fatally shot by OPP officers. Their families believe the OPP violated the police act during the SIU investigation. The case will be heard in Superior Court beginning Thursday.

In both deaths, officers who witnessed the shooting, as well as the officer who pulled the trigger, were instructed to delay writing their notes until after an association lawyer, Andrew McKay, reviewed them.

On June 22, 2009, Douglas Minty was shot five times outside his mother’s Elmvale home. The 59-year-old became distraught over an altercation with a door salesman. The officer would later say he saw Minty advancing with a knife. The SIU was not contacted until an hour and a half after the incident.

“In that time, the OPP received statements from the most significant eyewitnesses, had their media officer attend and had (the union involved),” according to court documents.

Two days after the Minty shooting, 30-year-old Levi Schaeffer was shot dead on the shore of Pickle Lake in northern Ontario. Officers were investigating reports of a stolen boat. In this case, all five officers involved shared the same lawyer and had a draft set of notes approved before submitting a final version to the SIU.

After a three-month probe, Scott announced that because officers in the Schaeffer case were not segregated and that because their comments were vetted by a lawyer, he had no reliable evidence to make a judgment. The officer was cleared.

“In this most serious case, I have no informational base I can rely upon,” Scott said at the time. “The first drafts have been ‘approved’ by a (union) 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.”

In contrast, when police investigate civilian incidents, it is routine practice to immediately separate witnesses and suspects. Investigators do this to make sure witnesses’ memories aren’t tainted and to prevent suspects from fixing their story.

But unlike civilians, police officers are bound by a set of rules under the Police Services Act to cooperate with an investigation. For one, all witness officers must give an interview to the SIU. The subject officer may refuse. Everyone involved must write notes, but only the witness officers must hand them over. Herein lies the heart of the dispute between Falconer and the SIU versus Ontario’s police community.

The act states that police chiefs shall, whenever “practicable” segregate police officers involved in an SIU incident. “A police officer . . . shall not communicate with any other police officer involved . . . until after the SIU has completed its interviews.”

Falconer said police associations are using the Charter issue as a red herring. Police officers can have a lawyer without it being the same lawyer as the others involved.

“Furthermore, you will not find a credible constitutional lawyer who would argue that the Charter gives a right to counsel to a witness in a criminal investigation. That is completely absurd,” said Falconer.

Alok Mukherjee, chair of the Toronto Police Services Board, said Falconer and the SIU are just plain wrong.

“Falconer and Scott’s opinion on whether the Charter protects police officers in an SIU investigation, I have seen nothing either in the act or the Charter that supports their opinion,” said Mukherjee. “If anyone is raising a red herring, it is Falconer, Scott and their advocates in the media.”

Cornwall Police Chief Daniel Parkinson, president of the Ontario Association of Chiefs of Police, noted that if every officer involved in an SIU investigation had a different lawyer it would become “prohibitively” expensive.

McKay, who acted for the OPP in both shootings, said an important issue is being lost in the whole argument.

“We as lawyers have professional obligations. When I go in and speak to officer A, and he tells me what happened, and then I go speak to officer B, I don’t . . . say: ‘I just spoke to officer A, this is what he told me, what do you say?’ If there’s any conflict in the stories, I would leave and call another lawyer. That happens all the time.”

Attorney General Chris Bentley said Monday the ministry has not taken a position on the issue as it is before the courts.