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TORONTO - Police note taking is coming under renewed scrutiny as relatives of two men killed by officers in Ontario allege that some practices are illegal and damaging to the integrity of the system.
The families want the courts to stop police officers involved in deadly incidents from first submitting their draft accounts to a lawyer for vetting.
An approved version of their notes is then turned over to civilian investigators probing whether the officers committed any wrongdoing.
Questions about police collusion and notes recently surfaced at inquiries into the RCMP tasering of Polish immigrant Robert Dziekanski at Vancouver airport and into the death of Howard Hyde, who had also been jolted by police in Halifax.
"There is a groundswell of concern and a more interested public in the question of how officers take their notes," Toronto lawyer Julian Falconer said Thursday.
"Officers’ notes are now recognized by citizens to be at the heart of how they account for what they’ve done."
Falconer’s application filed in Ontario Superior Court this week on behalf of the families seeks to have a judge give a binding interpretation of the rules, and to declare that police officers are breaking the law.
During separate confrontations in June, provincial police shot dead two mentally disabled men, Douglas Minty and Levi Schaeffer.
Ontario law mandates the civilian special investigations unit probes potential criminal wrongdoing in cases of death or serious injury involving police.
The unit’s director, Ian Scott, blasted the note-writing process that flowed from Schaeffer’s death as unreliable because confidential drafts were "approved" by a union lawyer, who represented all the officers involved.
"The notes do not represent an independent recitation of the material events," Scott wrote, saying he had no choice but to clear the officer.
In an interview Thursday, Scott said the police practice following the Schaeffer killing is not isolated.
"It’s of grave concern to me," he said.
"If the police officers’ notes are not independent and contemporaneous, it effects my ability to determine what happened."
Ruth Schaeffer, of Peterborough, Ont., said Thursday she’s deeply troubled by the note-writing issue that followed her son’s shooting.
"I don’t think we can get to the bottom of what happened because of the way the notes were taken," Schaeffer said.
"How can you clear somebody when you don’t know what happened? I just can’t believe anything."
Karl Walsh, president of the Ontario Provincial Police Association dismissed Scott’s concern, saying in a September statement the notebooks given the SIU contained a "very accurate depiction" of events.
"The lawyer did not tell the officers what to write."
Regulations forbid officers involved in an incident from communicating with one another, but there are concerns that having a single lawyer represent them could make a mockery of the directive.
Under law society rules, a lawyer who acts for both subject and witness officers is obliged to pass confidential information between the two clients, a situation the plaintiffs say creates de facto collusion.
The plaintiffs also note a provincial police policy implemented in the spring that directs officers to write up their notes before their shift ends, or "as approved by a supervisor."
"These guys are actually creating a separate set of confidential solicitors’ notes. They give their lawyer their notes, he vets them, and they create a second set of notes in their notebook," Falconer said.
Gary Clewely, a Toronto lawyer who frequently represents police officers, recently stressed in a police association newsletter the importance of officers talking to him before writing anything given the high stakes involved.
"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," Clewely wrote.
In 2003, the Supreme Court of Canada ruled that playing fast and loose with rules surrounding probes by the special investigations unit could amount to abuse of public office.
The Schaeffer and Minty application is expected to be heard in the spring.
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