The legal dispute between Special Investigations Unit director Ian Scott and the Ontario Provincial Police raises many important issues.
Last week, attention turned to Scott’s bid, along with the families of two men shot by police officers, to challenge police practices in SIU investigations in the Ontario Superior Court.
In particular, they’re concerned about officers, following an incident involving police in which someone is killed or injured, having their notes vetted by a police union lawyer.
At the same time, they’re raising red flags about the same lawyer representing all of the officers involved in the investigation, including both witnesses and subject officers.
The issue is one of due process. Does it taint the investigation to have a lawyer approve the notes? Does having the same lawyer deal with witnesses and the subject officer allow for collusion between them?
It’s a complicated matter. On the one hand, it seems fairly obvious that separating witnesses from the person being investigated is key to maintaining the integrity of the investigation, an issue police are always quick to raise in any criminal matter they themselves are dealing with involving civilians.
At the same time, given the importance of providing timely and untainted notes in contentious investigations, concerns about a lawyer approving them first are valid.
Police advocates raise Charter of Rights and Freedoms arguments about officers having a right to counsel. In addition, a Toronto Star report last week noted two other defences.
First, having separate lawyers for all officers involved in an investigation would be too expensive. Second, a lawyer for the OPP said that if he noted any conflict in the stories between officers or got any hint that they are colluding, he would call in another lawyer to get involved.
It’s a reasonable case to make, especially given concerns about the costs of policing in this province. But in many ways, that argument makes the point Scott and the families are raising: the potential for collusion does exist, and if there’s money for separate lawyers in cases where such behaviour is evident, there likely are resources for them more generally.
Overall, because it’s not obvious that the Charter guarantees witnesses the right to counsel, police should back off on this issue. Whatever the technicalities they may raise and the valid arguments they may have, the idea of a common lawyer vetting notes for both witnesses and subject officers doesn’t look good.
It’s a very different way of doing things than the procedures police follow in their own criminal cases, and given our system’s concern with maintaining both the substance of and the appearance of serving the ends of justice, it’s time for things to change regardless of what the court rules in the case at hand.
- Glenn Kauth
