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Do Police Officers Have the Same Fundamental Rights as Civilians?

By Pina Di Biase :-

Do Police Officers Have the Same Fundamental Rights as Civilians?

Do police officers have the same fundamental human rights as civilians? As distrust of the police is at an all time high, this is an interesting question and very relevant in today’s world.  The answer is not exactly. Police officers are governed by The Police Services Act, and the question regarding their fundamental rights was put to the test before the courts in the Supreme Court of Canada case, Wood vs Schaeffer, 2013.  

The two questions the Supreme Court of Canada answered were:

  1. Whether section 7(1) of the regulation of The Police Services Act entitles police officers involved in incidents triggering the Special Investigations Unit (SIU), to speak with counsel before completing their notes.   Section 7(1) grants officers the right to consult with legal counsel and to have legal counsel present at SIU investigations.  This section is silent on note taking.

(2) Whether police officers are entitled to basic legal advice as to the nature of rights and obligations in connection with the incident.

BACKGROUND

This case stemmed from two fatal shootings.  In both cases, officers were advised by their senior officers not to complete their notes until after the officers spoke with counsel.  An application was brought forth by the families of the deceased whereby they asked the court to interpret section 7(1) of the regulation and The Police Services Act.  Their application was dismissed on procedural grounds. 

The Court of Appeal heard the case based on its “merits” and held that the regulation did not permit police officers to seek assistance of counsel in preparing their notes.  The Court further held that police officers are entitled to receive “basic legal advise” as to the nature of their rights and obligations regarding the incident and the SIU, before completing their notes.  Police officers argued that these limits were too restrictive.  The Director of the SIU cross appealed, arguing that officers are not entitled to legal advise, basic or otherwise, prior to completing their notes.

DECISION BASED ON 3 REASONS

The Supreme Court stated that officers are entrusted with significant legal authority, including power to use deadly force against fellow citizens. Trust can be tested when a community member is killed at the hands of police.  The SIU is tasked with determining independently and transparently why. In making its decision, the court stated that there are 3 reasons, in light of the history and context, as to why the regulation was not meant to permit officers to consult with counsel before they complete their notes.

REASON No. 1

Consulting with counsel at the note taking stage, (1) risks eroding public confidence that the SIU was meant to foster, and (2) creates an appearances problem, similar to the one that the SIU was created to overcome.

The point of the regulation is to combat the appearances problem that flowed from “police investigating police” by placing investigations in the hands of civilians.  The public would question whether counsel’s assistance at note taking stage is meant to protect officers and is self serving.

REASON No. 2

Legislative history shows that section 7(1) was never intended to create a “freestanding” entitlement to consult with counsel that extended to the note taking stage.  In all reports related to the regulation, there was no discussion of counsel at the note taking stage.

Government has long been aware of the practise of officers consulting with counsel prior to preparing their notes, but government is not required to amend regulations that are already inconsistent with legislative scheme.

REASON No. 3

Section 9 of the regulation requires officers to complete full notes on the incident, in accordance with their duty.  Consulting counsel at the note taking stage impinges on their ability to prepare accurate and detailed notes.  Permitting officers to talk to 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/her private interest and this would not accord with the officer’s duty.

To allow officers any communication with counsel at this stage is meaningless, according to the court, and officers can speak to health care professionals and other staff, but not counsel.   An officer’s notes need to be independent and not lawyer enhanced.

DISSENTING – FUNDAMENTAL RIGHTS

The three dissenting judges argued that that starting point should not be the regulation, but fundamental rights (found in the Charter). Everyone is at liberty to consult with counsel.  The regulation is not a compete code.  The dissenting judges agree that police officers should not be allowed to consult with counsel on drafting where it would affect the independence of the notes. Counsel should not be drafting, nor reviewing notes.  An overly cautious approach doesn’t take into account the officers’ freedoms.  Lawyers will always fulfill their ethical duties and there is a tangible benefit for an officer to speak to counsel. while having no ethical issues arise. It could also help an officer be reminded of his/her duties in the circumstances and put the officer at ease after a very traumatic incident.  In other words, it’s not meaningless, as stated by the majority judges.

Pina Di Biase

Lawyer

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