Cops collude on notes: lawyer

Posted By CP/STAFF

Posted 16 days ago

TORONTO (CP) — The families of two men shot dead by Ontario Provincial Police officers this summer, including one in Elmvale, have asked a Superior Court judge to change the way police lawyers handle such cases.

Across Ontario, police officers involved in fatal shootings are being instructed by superiors to speak with union lawyers and have their notes vetted before speaking to the Special Investigations Unit.

The SIU is a civilian agency that decides whether to criminally charge police officers in cases of serious injury or death.

In some cases, the same lawyer deals with both the subject officer and any witness officers.

This, some have suggested, provides an opportunity for collusion, and at the very least could taint the memory of anyone involved.

In September, SIU director Ian Scott cleared a provincial police officer in the shooting death of 30-year-old Levi Schaeffer, declaring there was no way to determine what happened, because the two officers involved — there were no other witnesses — had their notes "approved" by a lawyer before the SIU could read them.

Lawyer Julian Falconer, who is acting on behalf of the families, has asked a judge to stop this practice.

"The families are going to court to get a judge to tell the OPP how to behave in shooting investigations. That this should even be necessary is a sad commentary," he said. "It's high time that the courts bring an end to this kind of nonsense."

A lawyer representing both the subject and witness officer, as in the Schaeffer shooting, is required to share information between the two.

Falconer and Scott argue this contradicts a section of the Police Services Act that states: "The chief of police shall segregate all the police officers involved in the incident from each other until after the SIU has completed its interviews."

Similarly, notes are to be prepared independently and directly after an incident.

In the Schaeffer case, the officers prepared a set of confidential notes for their lawyer. Once approved, they created a second set for their official memo book.

Ruth Schaeffer, 50, whose schizophrenic son was killed June 24 by a provincial police officer north of Thunder Bay, said her family would never have closure.

"We're going through with this court case because no mother should ever have to go through this," Schaeffer said.

She was joined by members of Douglas Minty's family.

Minty, a 59-year-old Elmvale man who had a mental disability, was fatally shot by a Huronia West OPP officer on June 22. Scott cleared the officers of wrongdoing, because Minty was armed with a knife when he approached the officer, who then used lethal force when he shot him numerous times in his mother's driveway.

Andrew McKay, the lawyer who represented the police officers in the Schaeffer shooting, said he had not had time to fully read the application, but it was interesting.

"The inference that the officers and the lawyers are colluding to cook the notes is preposterous. That simply doesn't happen," he said, adding this has always been the practice and "we've done absolutely nothing wrong."

The SIU's Scott said he hoped the application succeeded.

"I hope this application leads to the SIU being able to conduct more thorough investigations by being able to rely on independent and contemporaneous notes from police officers," Scott said.

In Scott's Sept. 28 decision, he said there was an "interaction of sorts" and an officer discharged his firearm at Schaeffer, causing his death.

"Beyond that, I am not sure what happened," Scott said, adding he could not place "sufficient reliance" on the information provided by the officers.

Scott said the subject officer was told not to write his notes until he had spoke to an Ontario Provincial Police Association (OPPA) lawyer. Once the lawyer approved the notes, Scott said the officer wrote in his notebook two days later "based on a combination of his confidential notes to counsel and discussions with him."

The SIU said neither officer involved in the Schaeffer case provided the investigators with their first set of notes.

Karl Walsh, president of the Barrie-based OPPA, said was he appalled that the SIU would cast doubt on the integrity of the two officers involved in the Schaeffer case and the OPPA's lawyer.

"We must reply to this attack in order to protect the officers, their lawyer and their right to legal counsel," Walsh said, which he said is the right of every Canadian.

"The suggestion that the notes in the officers' notebooks are anything but independent and reliable is completely false," Walsh said, adding the notebooks provided to the SIU contained "a very accurate depiction" of what happened to Schaeffer. "The lawyer did not tell the officers what to write in their notebooks."

Walsh said the OPPA and the SIU have developed a mutual respect over the years.

"This situation, however, has put a strain on that relationship," he said.

— with files from Raymond Bowe