Top 5 Civil Appeals From The Court Of Appeal Last Month (December 2011)

Schaeffer v. Wood, 2001 ONCA 716 (Sharpe, Armstrong and Rouleau JJ.A.), November 15, 2011 Oz Optics Limited v. Timbercon, Inc., 2011 ONCA 714 (Simmons, Armstrong and LaForme JJ.A.), November 15, 2011 Kaiser (Re), 2011 ONCA 713 (Cronk J.A. in chambers), November 14, 2011 Title v. Canadian Asset Based Lending Enterprise (CABLE Inc.), 2011 ONCA 715 (Sharpe, Juriansz and Watt JJ.A.), November 11, 2015 Jeffery v. London Life Insurance Co., 2011 ONCA 683 (O'Connor ACJO, Blair and LaForme JJ.A.), November 3, 2011 1. Schaeffer v. Wood, 2001 ONCA 716 (Sharpe, Armstrong and Rouleau JJ.A.), November 15, 2011

The appellants were family members of two deceased who died in incidents involving the use of police force. In the court below, they sought a declaratory judgment that, among other things, police officers who are involved in incidents attracting the attention of the Special Investigations Unit ("SIU") were not entitled to legal assistance in the preparation of their notes regarding the incident. The application judge dismissed the application on the basis that the applicants lacked standing to sue for declaratory relief and that the issues raised were moot and not justiciable. The appellants sought to reverse that decision and have their application decided on its merits.

At the heart of the appeal lay the legislative framework for SIU investigations, the Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O.Reg. 267/10, as amended by O.Reg. 283/11 ("SIU Regulation"), and certain practices adopted by police officers in the course of SIU investigations. The key requirements, which include amendments to the SIU Regulation that were put in place after the application was heard include: (i) that police officers involved in the incident should be segregated from each other until after the SIU has completed its interviews; (ii) a police officer involved in the incident shall not communicate directly or indirectly with any other police officer involved in the incident concerning the incident until after the SIU interviews; (iii) every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU unless it would cause an unreasonable delay in the investigation; (iv) witness officers may not be represented by the same legal counsel as subject officers; (v) a witness officer shall complete in full the notes on the incident in accordance with his or her duty and shall provide the notes to the chief of police within 24 hours after a request for the notes is made by the SIU; (vi) a subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU; and (vii) the notes made shall be completed by the end of the officer's tour of duty, except where excused by the chief of police.

Subject officers are defined to mean a "police officer whose conduct appears, in the opinion of the SIU Director, to have caused the death or serious injury under investigation". Witness officers are defined as "a police officer who, in the opinion of the SIU director, is involved in the incident under investigation but is not a subject officer."

The applicants complained that the SIU Regulation was not followed in the course of the SIU investigations into the deaths of their family members. In one incident, the subject and witness officers involved were advised by their senior officer to delay making their notebook entries until they had consulted with counsel. Those notes were prepared for counsel's review or with counsel's advice and were completed two days after the incident. Both the subject and witness officers consulted the same counsel. In the other incident, the subject and witness officers were again represented by the same counsel and had been advised by their senior officer that they should make no further notes until after they had spoken to legal counsel. The Director of the SIU had complained that these practices undermined the integrity of the SIU investigations.

On the issue of whether the applicants had standing to bring the application, the Court of Appeal concluded that the application judge erred in characterizing the issue of the retention of counsel in the preparation of an officer's notes as a matter of private right. The definition and exercises of rights and duties of police officers involved in SIU investigations have significant consequences for the public at large. The content and definition of those rights and duties turns on the interpretation of legislation. When the Supreme Court extended the scope of public interest standing to non-constitutional challenges to the legality of administrative authority, it prevented the immunization of legislation or public acts from any challenge (Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at para. 36). The court found that purpose was met by allowing the appellants to advance their claim for declaratory relief.

In addition, the appellants presented a strong case that they were directly affected by and had a genuine interest in the issues raised by the application. They were family members of the deceased and the conduct of which they complain was found by the Director of the SIU to undermine the integrity of the investigation. The court said "the appellants have suffered immeasurable losses and to be told that their losses cannot be fully investigated because of the very conduct they seek to challenge, is sufficient to demonstrate that they are directly affected by, and have a genuine interest in, the issue."

Finally, the court disagreed with the applications judge that an action for misfeasance of public office or a complaint to the Law Society constituted another reasonable or effective manner to bring the issue before the courts. The tort of misfeasance of public office is difficult to establish, and whether the police officers are entitled to legal assistance in the preparation of their notes does not necessarily engage the Law Society's Rules of Professional Conduct. Even if it did, the appellants would not be parties to any Law Society proceedings.

As to whether the issues raised by the application were justiciable, the court again found that the application judge erred in her conclusion that they were not. The legal regime the court was being asked to interpret is shaped by policy considerations and the need to balance competing interests cannot preclude the court from exercising its customary role of interpreting the legal instruments that the legislature has provided. Where policy issues provide the context for, rather than the substance of, the questions before the court, the matter is justiciable.

The Court of Appeal concluded that, since the amendment to the SIU Regulations clearly forbids the joint retainer of counsel by subject and witness officers, the issue of double retainer was moot. However, the issue of whether officers involved in SIU investigations are entitled to obtain legal advice in the preparation of their notes was not answered by the amended SIU Regulation and remained live.

The court then considered the central issue before it: are officers entitled to the assistance of counsel in the preparation of their notes? It held that that the legislation governing SIU investigations should be interpreted in a manner that "provides complainants with a mechanism for an impartial and independent review of complaints and thereby enhances public confidence and trust in the administration of justice" (Metcalf v. Scott, 2001 ONSC 1292 (S.C.J.) at para. 91).

The court observed that the SIU Regulation (giving police officers the right to consult with legal counsel) significantly enhances the rights of both witness and subject officers beyond those enjoyed by ordinary citizens. The right to retain and instruct counsel conferred by s. 10(b) of the Canadian Charter of Rights and Freedoms arises upon arrest or detention. In contrast, witness and subject officers have a statutory right to consult counsel in connection with an SIU investigation, without any arrest or detention. The right to consult counsel and have counsel present during an interview with the SIU is a right not accorded to ordinary citizen but is accorded to police officers because, unlike the ordinary citizen, police officers do not enjoy the right to silence in the face of an SIU investigation. They instead have a statutory obligation to cooperate, to prepare their notes and to submit to an SIU interview.

However, the right to counsel is not without limit. Its meaning must be discerned with reference to the other provisions of the SIU Regulation to achieving a harmonious and coherent interpretation of the entire scheme.

The SIU Regulation reinforces an officer's duty to complete his or her notes in full in accordance with his or her duty. It would thus be wrong to interpret the right to counsel in a manner that would undermine or contradict the duty to complete notes. It was common ground on this appeal that the duty to create independent and contemporaneous notes of events is fundamental to the professional role of a police officer and central to the integrity of the administration of criminal justice. An officer's notes are also used to assist the officer in testifying at trial. It is thus vitally important to the reliability and integrity of the officer's evidence that the notes used record the officer's own independent recollection. Otherwise, the officer will be refreshing his or her memory with observations made by somebody else, and effectively giving hearsay evidence as if it was his or her own recollection.

The concern with a police officer seeking legal assistance before preparing his or her notes is not...

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