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SUPREME COURT of CANADA (On Appeal from the Court of Appeal for Ontario)

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SUPREME COURT of CANADA (On Appeal from the Court of Appeal for Ontario) I J - - --- l Court File No. 34621 SUPREME COURT OF CANADA (On Appeal From the Court Of Appeal for Ontario) BETWEEN: POLICE CONSTABLE KRIS WOOD, ACTING SERGEANT MARK PULLBROOK, POLICE CONSTABLE GRAHAM SEGUIN Appellants/Respondents on Cross-Appeal (Respondents) -and- RUTH SCHAEFFER, EVELYN MINTY AND DIANE PINDER Respondents/ Appellants on Cross-Appeal (Appellants) -and- IAN SCOTT, DIRECTOR OF THE SPECIAL INVESTIGATIONS UNIT Respondents/Appellants on Cross-Appeal (Respondent) -and- JULIAN FANTINO, COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE Respondent (Respondent) FACTUM OF THE INTERVENOR, URBAN ALLIANCE ON RACE RELATIONS (Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada) I . I ' b STEVENSONS LLP GOWLING LAFLEUR HENDERSON Barristers Barristers and Solicitors 202 -15 Toronto Street 2600 - 160 Elgin Street Toronto, ON M5C 2E3 Ottawa, ON KIP 1C3 Tel: 416-599-7900 Tel: 613-786-0212 Fax: 416-599-7910 Fax: 613-788-3500 Maureen Whelton Guy Regimbald Neil Wilson Ottawa Agent for the Intervenor, Urban Lawyers for the Intervenor, Urban Alliance on Alliance on Race Relations Race Relations SACK GOLDBLATT MITCHELL LLP SUPREME ADVOCACY LLP 11 00 - 20 Dundas Street West 397 Gladstone Avenue, Suite 100 Toronto, Ontario M5G 2G8 Ottawa, Ontario M2P OY9 Tel: 416-979-4380 Tel: 613-695-8855 Fax: 416-979-4430 Fax: 613-695-8580 Marlys Edwardh Eugene Meehan, Q.C. Kelly Doctor Ottawa Agent for Ian Scott, Daniel Sheppard Director of the Special Investigations Unit Counsel for Ian Scott, Director of the Special Investigations Unit GREENSPAN HUMPHREY LAVINE GOWLING LAFLEUR HENDERSON Barristers Barristers and Solicitors 15 Bedford Road 160 Elgin Street, Suite 2600 Toronto, Ontario M5R 217 Ottawa, Ontario KIP 1C3 Tel: 416-868-1755 Tel: 613-233-1781 Fax:416-868-1990 Fax: 613-563-9869 Brian H. Greenspan Henry Brown, Q.C. David M. Humphrey Ottawa Agent for the Appellants Jill D. Makepeace Counsel for the Appellants FALCONER CHARNEY LLP GOWLING LAFLEUR HENDERSON 8 Prince Arthur A venue Barristers and Solicitors Toronto, Ontario M5R 1A9 160nlgin Street, Suite 2600 Tel: 416-963-3408 Ottawa, Ontario KIP 1C3 Fax: 416-929-8179 Tel: 613-233-1781 Fax: 613-563-9869 Julian Falconer Sunil Mathai Brian A. Crane, Q.C. Counsel for Ruth Schaeffer, Evelyn Minty and Ottawa Agent for Ruth Schaeffer, Evelyn Diane Pinder Minty and Diane Pinder I I I J c MINISTRY OF COMMUNITY SAFETY & BURKE ROBERTSON CORRECTIONAL SERVICE 441 MacLaren, Suite 200 Legal Services Ottawa, Ontario K2P 2H3 77 Grenville Street- gth Floor Tel: 613-233-4430 Toronto, Ontario M5S 1B3 Fax: 613-233-4195 Tel: 416-314-3513 Fax: 416-314-3518 Robert E. Houston, Q.C. Ottawa Agent for Julian Fantino, Christopher Diana Commissioner of the Ontario Provincial Police Counsel for Julian Fantino, Commissioner of the Ontario Provincial Police ---~ ,__ -I I _ :._-:._--- I J....:___ - - I I Court File No. 34621 SUPREME COURT OF CANADA (On Appeal From the Court Of Appeal for Ontario) BETWEEN: POLICE CONSTABLE KRIS WOOD, ACTING SERGEANT MARK PULLBROOK, POLICE CONSTABLE GRAHAM SEGUIN Appellants/Respondents on Cross-Appeal (Respondents) -and- RUTH SCHAEFFER, EVELYN MINTY AND DIANE PINDER Respondents/Appellants on Cross-Appeal (Appellants) -and- IAN SCOTT, DIRECTOR OF THE SPECIAL INVESTIGATIONS UNIT Respondents/Appellants on Cross-Appeal (Respondent) -and- TIJLIAN F ANTINO, COMMISSIONER OF THE ONTARlO PROVINCIAL POLICE Respondent (Respondent) FACTUM OF THE INTERVENOR, URBAN ALLIANCE ON RACE RELATIONS (Pursuant to Rules 37 and 42 ofthe Rules of the Supreme Court of Canada) TABLE OF CONTENTS ~ -~ --- I 2 PAGE PART I - OVERVIEW 1 PART II- INTERVENOR'S POSITION ON THE QUESTION 2 PART III - INTERVENOR'S ARGUMENT 2 PART IV- SUBMISSION ON COSTS 10 PART V - REQUEST FOR PERMISSION TO PRESENT ORAL ARGUMENT 10 PART VI- TABLE OF AUTHORITIES 11 PART VII- STATUTES AND REGULATIONS 12 -------- 1 I I 1 FACTUM OF THE INTERVENOR, URBAN ALLIANCE ON RACE RELATIONS (Pursuant to Rules 37 and 42 of the Rules ofthe Supreme Court of Canada) PART I- OVERVIEW 1. By Order dated February 7, 2013, this Honourable Court granted the Urban Alliance on Race Relations ("UARR") leave to intervene in this Appeal. The UARR is a thirty­ five-year-old, non-profit, multi-racial public interest organization. The UARR has a long history of fostering communication between the police and racialized groups. 2. This appeal centres around an interpretation of section 7 of the Conduct and Duties ofPolice Officers Respecting Investigations by the Special Investigations Unit, 0. Reg. 267/10 (the "SIU Regulation"), section 9 of the SIU Regulation, and the underlying common law with respect to the duty of police officers to make contemporaneous and independent notes. The answer to the question posed by this appeal engages a matter of fundamental importance to the rule of law: the transparency of state investigations in cases where the state kills or seriously injures one of its citizens. 3. The question in this case is whether it is appropriate for officers involved in an incident where the use of police force has caused death or serious injury to consult with counsel prior to completing their duty book notes. The Court of Appeal for Ontario (per Sharpe J.A., Armstrong and Rouleau concurring), allowed an appeal from a decision of Low J. at first instance. Low J. had been asked and declined to grant various declarations under Rule 14.05 of the Rules ofCivil Procedure in respect ofthe Police Services Act, R.S.O. 1990, c. P. 15, s. 113(9) (the "Act") and ss. 7 and 9 of the SIU Regulation. By the time the matter was argued at the Court of Appeal, the issues had narrowed and thus, in allowing the appeal, the Court of Appeal granted a narrower declaration than had been originally sought. In particular, the Court of Appeal granted a declaration under Rule 14.05 of the Rules of Civil Procedure that the Act and the SIU Regulation do not permit police officers involved in an SIU investigation to have a lawyer vet their notes or to assist them in the preparation of their notes but do permit police officers to obtain legal advice as to the general nature of their rights and duties with respect to SIU investigations. 2 4. The appellants state that the Court of Appeal erred and that the right to counsel set out in section 7 of the SIU Regulation includes an officer's right to obtain legal advice with respect to the preparation of notes. The respondent, Ian Scott, Director ofthe SIU, has cross­ appealed and states that police officers ought not to be entitled to consult with counsel prior to completion of their duty book notes including consultation in respect of general rights and duties. The respondent families state that the Court of Appeal made the correct decision and struck the right balance. PART II - INTERVENOR'S POSITION ON THE QUESTION 5. Core principles of statutory interpretation require that legislation be interpreted in a manner that "enhances public confidence and trust in the administration of justice." An overarching tenet of our common law is that justice must not only be done but must be seen to be done. This tenet is inextricably tied to public confidence. Applied to this appeal, this principle leads to the conclusion that the note-preparation process at issue must not only be wholly independent of the input of counsel but must be seen to be so. The U ARR accepts that lawyers and police will by and large act in an ethical manner and follow the law. At the same time, the UARR submits that the note-preparation process should be completed prior to seeking advice from counsel so as to avoid placing members of the public in the position of having to accept on faith that no proscribed advice affected the notes. This is the only interpretation of the Act and the SIU Regulation that is consistent with the legislation's purpose and goal of enhancing the public's confidence in this very important public process. PART III- INTERVENOR'S ARGUMENT The Facts 6. The UARR relies on the facts set out in the Factum of the Respondent, Ian Scott, Director ofthe SIU. The Judgment of the Court of Appeal 7. In its unanimous judgment, the Court of Appeal for Ontario held that the purpose of the statutory and regulatory provisions relating to SIU investigations is to ensure the 3 "independent and accountable investigation of the use of police force causing death or serious injury and to foster public confidence in such investigations and in the integrity ofthe police." [Emphasis added]. Sharpe, J.A., for the Court, cited MacKenzie J.'s statement in Metcalfv. Scott 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 ofjustice."1 8. With respect to an officer' s duty to prepare notes, the Court of Appeal found that "[r]eliable independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice." Moreover, the Court of Appeal found that the "lawyer­ induced refinements or qualifications" that would "almost certainly flow" from a lawyer's involvement in the preparation of an involved officer's notes would "undermine the very purpose of a police officer's notes, namely, to record the officer' s independent contemporaneous record ofthe incident."2 9. The Court of Appeal held that the right to counsel provided by section 7 of the SIU Regulation "does not operate to permit officers to obtain legal assistance in the preparation of notes" and explained that this finding gives effect to the overarching purpose of the legislation - the preservation and promotion of independence, accountability and public confidence in the investigation of police use of deadly force.
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