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 '

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

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

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

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 ofCivil 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. 3

10. Notwithstanding the above, the Court of Appeal held that an involved officer is entitled to obtain "basic legal advice as to the nature of his or her rights and obligations in connection with the incident and the SIU investigation." In articulating this right Sharpe J.A. rejected the submission that such advice should await the completion of an officer's notes:

I reject the submission that because solicitor-client privilege will shield from the court's view the legal advice given to officers, we should not permit any consultation with a lawyer until after the notes have been completed. As both counsel for the respondent officers and counsel for the Criminal Lawyers

1 Reasons of the Court of Appeal for Ontario, dated November 15,2011 ["Court of Appeal Reasons"], at paras. 58, and 63-65 citing Metcalfv. Scott, 2011 ONSC 1292 (S.C.J.), at para. 91. 2 Court of Appeal Reasons, supra note 1, at paras. 69 and 74. 3 Court of Appeal Reasons, supra note 1, at para. 76. ~ ~ -- .I I - j i ~~ - --- . . ~- .. I I . --:__ I l

Association submitted, lawyers have an ethical obligation to advise clients in accordance with the law. I have confidence in the ethical standards of the legal profession and I am confident that a lawyer called upon to give the type of advice I have outlined in these reasons would not misuse or abuse the opportunity by providing improper assistance with regard to the content of the officer's notes.4

The Critical Nature of a Police Officer's Notes

11. Police officers are public office holders that have been given extraordinary powers by the state. An officer's duties are owed not only to her employers but to the public as a whole. 5 These duties include the duty to create independent and contemporaneous notes that accurately memorialize all relevant observations made during the officer's shift. The appellants do not dispute that this duty is fundamental to the professional role of a police officer.

12. The facta of the respondents set out the important functions that officers' notes play in the justice system (see paras. 37-38 of the SID's factum). As a result of those functions, courts have consistently asserted their jurisdiction to articulate the appropriate standards for the note-taking process.6 In particular, independence has been recognized as crucial to the note taking process to ensure that the notes reflect the actual observations of the individual officer.7 Further, given the frailty of the human memory, courts have recognized the importance of the timely completion of notes to ensure their accuracy. 8

13 . There is no dispute that, aside from the myriad of purposes for which an involved officer' s notes may be used, including to lay charges against and to prosecute a civilian, the notes prepared by both subject and witness officers are absolutely necessary for the SIU to conduct and to be seen to conduct an effective investigation. In the Schaeffer investigation, the Director of the SIU reported to the Attorney General that the manner in which P.C. Wood and A/Sgt.

4 Court of Appeal Reasons, supra note 1, at para. 83. 5 Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311 at 319-321 6 111 R. v. Green, [1998] OJ. No. 3598 (O.C.J. (Gen. Div.)), at paras. 18-25; R. v. Mattis, (1998) 20 C.R. (5 ) 93 (O.C.J. (Prov. Div.)), at paras. 21-23; R. v. Bowerbank, [200 1] O.J. No. 755 (S.C.J.), at para. 47; R. v. Fisher, (2008) 78 W.C.B. (2d) 68 (Ont. S.C.J.), at para. 87; R. v. Barrett (1993), 82 C.C.C. (3d) 266 (Ont. C.A.), at para. 17 per Arbour J.A. (as she then was) ("Whenever possible, every officer ... who will want to refer to his or her notes as a memory aid for the purpose of giving evidence shout take contemporaneous, independent notes"); rev'd on other grounds [1995] 1 S.C.R. 752; cited in R. v. Flores, [1994] OJ. No. 3124 (O.C.J. (Prov. Div.)), at para. 54. 7 R. v. Holden (2001), 159 C.C.C. (3d) 180 (Ont C.A.), at paras. 53-60, 103; R. v. Gordon, [2002] O.J. No. 932 (S. C.J.), at paras. 70-71. 8 R. v. White (2003), 176 C.C.C. (3d) 1 (Ont. C.A.) at paras. 11-12, 25.

I 5

Pullbrook prepared their notes left him with "no information base I can rely upon." It is common ground in this appeal that an SIU investigation can tum on the notes of an involved officer.

14. As outlined above, Sharpe J.A. acknowledged the importance of officers' notes and the requirement that they be independent and found that a lawyer's involvement in the preparation of those notes would undermine the notes' independence. The UARR agrees with these findings.

15. The UARR respectfully disagrees with the Court of Appeal's finding that an involved officer should be able obtain basic legal advice that does not touch upon the preparation of notes prior to those notes being completed because lawyers can be trusted not to provide • . 9 rmproper assistance.

Statutory Interpretation and the Legislative Goal of Enhancing Public Confidence

16. Ontario's Legislation Act, 2006 requires that both Acts and regulations "be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects."10 A purposive analysis, as required by the Legislation Act, 2006, is based on three propositions: (1) all legislation is presumed to have a purpose; (2) legislative purpose must be taken into account in every case at every stage of interpretation, including initial determination of a text's meaning; and (3) insofar as the language permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided. 11

17. The UARR agrees with the Court of Appeal that the important remedial purpose of the legislation at issue is to "maintain and foster public confidence in the rule of law and the administration ofjustice by ensuring that when police actions result in the death of or serious injury to civilians, they are subject to an independent, impartial and effective investigation the conclusions of which are accessible and transparent."12

9 Court of Appeal Reasons, supra note 1, at para. 83. 10 Legislation Act, 2006, S.O. 2006, c.21, Sch. F, s. 64. 11 Ruth Sullivan, Sullivan on the Construction ofS tatutes, 5th ed. (Markham: LexisNexis, 2008) at 255. 12 Court of Appeal Reasons, supra note 1, at para. 58. : I

18. In light of this legislative purpose, a purposive interpretation of the Act and the SIU Regulation cannot support a finding of an involved officer's right to obtain legal advice prior to the completion of her notes. Justice Sharpe's holding that "I have confidence in the ethical standards of the legal profession and I am confident that a lawyer called upon to give the type of advice I have outlined in these reasons would not misuse or abuse the opportunity by providing improper assistance with regard to the content ofthe officer's notes" was key to his finding of a right to "basic legal advice". The UARR submits that an approach which considers what confidence members ofthe public will have in the standards of the legal profession is better suited to encouraging true public confidence in the SIU process.

19. In the context of conflicts of interest and preservation of confidential information, this Court's holding in Macdonald Estate v. Martin was premised on the reality that the public would not be satisfied with a judicial approach that trusted the lawyer absent objective verification:

A fortiori undertakings and conclusory statements in affidavits without more are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying "trust me". This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likely to be satisfied without some additional guarantees that confidential information will under no circumstances be used. In this regard I am in agreement with the statement ofPosner J. inAnalytica, supra, to which I have referred above, that affidavits oflawyers difficult to verifY objectively will fail to assure the public. [Emphasis added] 13

20. Assuring the public is important. "Appearances count."14 The maxim that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" has been recognized by this Court as a "fundamental precept of our justice system."15 Police notes are an indispensable tool for the profession and£or the administration of-Justice, and legaL intervention between the events the notes record and the notes' creation may create a reasonable suspicion with respect to their integrity.

13 Macdonald Estate v. Martin, [1990] 3 S.C.R. 1235, at para. 50. See also Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, at para. 62. 14 R. v. Yummu, 2012 SCC 73, at para. 40. 15 Ibid, at para. 39. I I - ~-. I I

21. In R. v. Sussex Justices, Lord Hewart wrote "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course ofjustice." 16 In that case, judges had sworn affidavits confirming that a judicial clerk employed with a firm acting on the case had not participated in the decision-making process. Nonetheless, the reviewing court found that the public' s perception of what might have happened mattered as much as what actually happened. The same principle should be applied here: although the lawyer may in fact not provide improper legal assistance, there is a very real potential for a suspicion that improper legal assistance has been rendered given the secrecy of the advice, the lawyer's partisan role as counsel, and, unfortunately, the scepticism in the independence of the investigations process which the legislative scheme is intended to redress.

22. Furthermore, in balancing the right to counsel and the duty to make independent and contemporaneous notes, the character of the "basic legal advice" described by Justice Sharpe should be taken into account. The permissible advice was articulated by the Court of Appeal as " ... basic legal advice as to the nature of his or her rights and obligations in connection with the incident and the SIU investigation," with illustrative examples provided. 17

23. The basic advice described is, in the UARR's submission, in the nature of context-generic legal information, provided and received "readily and quickly" and foregone if counsel is not available. It is possible that such information could be effectively provided without resort to counsel, such as, for example, through a training manual or information card. Obtaining the legal information through these channels could avoid perceptions of improper interference with the note-creating process while ensuring officers have information about the nature of their rights and obligations in connection with the incident and the SIU investigation.

24. The legislature cannot have intended to compromise the goal of a fully transparent process and the public confiaence such a process engenders for the sake of the chance to obtain a tightly circwnscribed legal consultation at a specific point in time, if such a consultation is even available. It is respectfully submitted that the right to counsel should be exercised after the officer has completed his duty book notes.

16 R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256. 17 Court of Appeal Reasons, supra note 1, at para. 81. -:. _ --1

Perceptions of Key Police Service Constituents

25. Fostering confidence and trust in the administration ofjustice on the part of visible minorities is a goal that has been pursued in Canada for decades, and progress has been both incremental and delicate. Given our history, where police accountability is at issue the need for justice to be seen to be done is of great importance and a fully transparent process is essential.

26. There is no doubt that racialized communities perceive themselves to be particularly vulnerable to police abuses. This concern, and broader concerns surrounding systemic racism in the justice system, have been reiterated in a litany of audits, commissions, reports, and court decisions, including decisions of this Court. For example: (a) In 1989, a Race Relations and Policing Task Force prepared a report which stated that it was "abundantly clear that members of visible minorities believe they are treated quite differently from the majority community by the police." 18

(b) In 1995, the Province of Ontario held a Royal Commission on Systemic Racism in the Ontario Criminal Justice system. The report of this Commission found a very strong perception, in the minds of community members, that various actors within the justice system, including the police, administer justice unequally according to race. The Commission also found evidence tending to support this perception, noting that although racial bias is not intended, race does appear to have an influence on decisions made by . 19 po 11ce.

(c) In 1998, the Honourable George W. Adams, Q.C., authored a Consultation Report to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigation Unit. Mr. Adams noted that community groups saw failure of immediate cooperation with the SIU "as symptomatic of a refusal by police to accept effective civilian oversight. Many community representatives felt these continuing problems inhibited scrutiny and control of excess use of force, and reflect the individual and systemic racism that, in their view, underlies the use of force on persons of colour and Aboriginal peoples in Ontario."20

18 Race Relations Policing Task Force, The Report ofthe Race Relations and Policing Task Force, (Toronto: Race Relations and Policing Task Force, 1989) (Chair: Clare Lewis), at p. 153. 19 Ontario, Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer, 1995) (Co-Chairs: Margaret Gittens, David Cole) at 35-36. 2°Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit (Toronto: May 14, 1998), at pp. 33-34 I ' ~ ~ ~~ ;~~ ,

(d) This Court has on a number of occasions recognized systemic concerns relating to real and perceived racism in our justice system and in policing. Areas where institutional racism have been of concern include jury selection,21 sentencing,22 police investigatory techniques,23 and racial profiling in police interventions?4

27. These concerns persist today. A recent study published in the Canadian Journal ofCriminology and Criminal Justice found that non-members of visible minorities express significantly more confidence in the police than do members of visible minority groups. In the study, the largest gap lay in the question of whether police are doing a good job oftreating people fairly. 25

28. Confidence in the police is important. Citizens' confidence in the police has been found to be related to their willingness to report crime, their readiness to share information about criminal activity and their compliance with the law. A racial differential in confidence in the police warrants special attention because it undermines the social integration of a community by creating multiple, parallel social differences based on ethnic groups. Further, differential confidence in the police based on race or ethnicity "may lead to deeper suspicion and even to more frequent and severe confrontations between the police and racial minorities." As noted by commentator Liqun Cao, a single incident of injustice or even an incident of perceived injustice can have unexpected deleterious effects. 26

29. Notably, studies have found that procedural justice matters more to public confidence than the outcome of a police encounter. In police-initiated contacts, procedural justice has been found to be the most important influence on satisfaction ratings27 and there is no doubt but that procedural safeguards are critical to public confidence in a SIU investigation.

21 R. v. Williams, [1998] 1 S.C.R 1128. 22 R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, at paras. 67 and 127, R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 27. 23 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para. 36. 24 R. v. Grant, 2009 SCC 32, as per Binnie J.'s concurring opinion at para. 154. 25 Liqun Cao, "Visible Minorities and Confidence in the Police," Canadian Journal ofCriminology and Criminal Justice (Vol. 53 No. 1, January 2011), pp. 11-12. 26 Ibid., pp. 18-19. 27 Simon Merry et al., "Drivers of Public Trust and Confidence in Police in the UK," International Journal ofPolice Science&Management(Vo1.14No.2, 2012), 118-135atp.l23. 10

30. Racialized communities' perception of police accountability is essential to the public' s trust in the integrity of the administration ofjustice . These communities generally view the system of police oversight with suspicion, and traditional structures of police governance are perceived as not being effective, accountable, or accessible to the community.28 UARR submits that a fully transparent SIU investigation will have a beneficial effect on race relations and community perceptions of police accountability. Inserting secret advice from a lawyer into the process prior to the completion of the officer' s duty book notes risks compromising fragile public confidence in the integrity and transparency of the process.

PART IV - SUBMISSION ON COSTS

31. UARR does not request costs and requests that no costs be awarded against it.

PART V- REQUEST FOR PERMISSION TO PRESENT ORAL ARGUMENT

32. UARR requests permission to present oral argument not to exceed ten (10) minutes. The issues in this appeal will have a profound effect on the perception of police accountability by vulnerable communities in the Province of Ontario. It is important that the UARR have the opportunity to make oral submissions.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

April 4, 2013

Neil G. Wilson Lawyers for the Urban Alliance on Race Relations

28 Charlotte Chiba, "The Justice System: Is it Serving or Failing Minorities?", 8:2 Currents 41 at 45. 11

PART VI - TABLE OF AUTHORITIES

Cases

Celanese Canada Inc. v. Murray Demolition Corp. , 2006 SCC 36 6 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 9 Macdonald Estate v. Martin, [1990] 3 S.C.R. 1235 6 Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311 4 R. v. Barrett (1993), 82 C.C.C. (3d) 266 (Ont. C.A.) 4 R. v. Borde, [2003] O.J. No. 354 (C.A.) 9 R. v. Bowerbank, [2001] O.J. No. 755 (S .C.J.) 4 R. v. Fisher, (2008) 78 W.C.B. (2d) 68 (Ont. S.C.J.) 4 R. v. Flores, [1994] O.J. No. 3124 (O.C.J. (Prov. Div.)) 4 R. v. Gladue, [1999] 1 S.C.R. 688 9 R. v. Gordon, [2002] O.J. No. 932 (S.C.J.) 4 R. v. Grant, 2009 SCC 32 9 R. v. Green, [1998] O.J. No. 3598 (O.C.J. (Gen. Div.)) 4 R. v. Holden (2001), 159 C.C.C. (3d) 180 (Ont. C.A.) 4 R. v. Ipeelee, 2012 SCC 13 9 R. v. Mattis, (1998) 20 C.R. (51h) 93 (O.C.J. (Prov. Div.)) 4 R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256. 7 R. v. White (2003), 176 C.C.C. (3d) 1 (Ont. C.A.) 4 R. v. Williams, [1998] 1 S.C.R 1128 9 R. v. Yummu, 2012 SCC 73 6

Other Authorities

Charlotte Chiba, "The Justice System: Is it Serving or Failing Minorities?", 8:2 Currents 41 10 Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit (Toronto: May 14, 1998) 9 Liqun Cao, "Visible Minorities and Confidence in the Police," Canadian Journal ofCriminology and Criminal Justice (Vol. 53 No. 1, January 2011) 9 Ontario, Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer, 1995) (Co-Chairs: Margaret Gittens, David Cole) 8 Race Relations Policing Task Force, The Report ofthe Race Relations and Policing Task Force, (Toronto: Race Relations and Policing Task Force, 1989) (Chair: Clare Lewis) 8 Ruth Sullivan, Sullivan on the Construction ofStatutes, 5th ed. (Markham: LexisNexis, 2008) 5 Simon Merry et al., "Drivers of Public Trust and Confidence in Police in the UK," International Journal ofPolice Science & Management (Vol. 14 No. 2, 2012), 118-135 10 12

PART VII- STATUTES AND REGULATIONS

Police Services Act Loi sur les services policiers

ONTARIO REGULATION 267/10 REGLEMENT DE L'ONTARIO 267/10

CONDUCT AND DUTIES OF POLICE CONDUITE ET OBLIGATIONS DES OFFICERS RESPECTING AGENTS DE POLICE E~ CE QUI INVESTIGATIONS BY THE SPECIAL CON~ERNELES~NQUET~SDE INVESTIGATIONS UNIT L'UNITE DES ENQUETES SPECIALES

Last amendment: 0 . Reg. 283/11. Derniere modification : Regl. de I' Ont. 283/11. Right to counsel Droit a un avocat ~ Subject to subsection (2J, ~ Sous reserve du paragraphe (2), I'agent everr po officer is entitled to consu t with p lice ale droit de consulter un avocat ou lega counsel or a representative of a police association and to have legal counsel or a un re~resentant d 'une association de policiers representative of a rcolice association flresent et a roit a la presence d'un avocat ou d'un during his or her in erview with the S U. representant d'une telle association pendant 0. Reg. 267/10, s. 7 (1). son entrevue avec l'UES. Regl. de l'Ont. 267110 par. 7 (1 ). m Subsection ~1) does not apply if, in the ~ Le paragraphe (1) ne s'ap~li~ue pas si, de opmwn of the SI director! wmtmg for legal vis du d1recteur de I U S, le fait counsel or a rdresentatlve of a pohce d' attendre un avocat ou un representant association woul cause an unreasonable d'une association de policiers retarderait delay in the investigation. 0. Reg. 267/10, l'enqw3te de fa9on dera1sonnable. Regl. de s. 7 {2). l'Ont. 267/10, par. 7 (2). ill Witness officers may not be ill Les a_gents temoins ne peuvent pas etre re~resented by the same lejal counsel as representes par le meme avocat que les su ~ect officers. 0. Reg. 283/ 1, s. 2. agents qui font l'objet d'une enquete. Regl. de l'Ont. 283111, art. 2 ...... Notes on incident Notes sur !'incident ~A witness officer shall ~ L' agent temoin redige des notes comple ll the notes on the incident in competes sur }'incident conformement a son accordance with his or her duffi and, subject obligation et, sous reserve du parafraphe {4) to subsection (4) and section 1 shall ~rovide the notes to the chief ofpolice within et de 1' article 1oh les fournit au che de solice 4 hours after a-requestior the notes is made au _Qlus tard 24 eures apres gue 1' UE en a by the SIU. 0. Reg. 267/10, s. 9 (1). fait la emande. Regl. de l'Ont. 267/10, par. 9 (1). ill Subject to subsection (4) and section ~ Sous reserve du £aragraphe ( 4) et de 10, the chief of police shall provide cvies of article 10, le chef e police fournit des a witness officer's notes to the SI upon copies des notes d'un agent temoin a 1'UES a request, and no later than 24 hours after the sa demande, au cftlus tard 24 heures a~res la request. 0 . Reg. 267110, s. 9 (2). demande. Regl. e 1' Ont. 26711 0 oar. (2). ill A subject officer shall complete in full ill L' agent impligue redige des notes the notes on the incident in accordance with completes sur !'incident conformement a son his or her duty, but no member of the police obligation, mais aucun membre du corps de force shall provide copies of the notes at the police ne doit en fournir des copies a la I i

(4) The SIU director may allow the chief (4) Le directeur de l'UES peut autoriser le orpolice to provide copies of the notes cnef de ROlice a foumir des copies des notes beyond the time requirement set out in a,wes le uelai fixe au aragraphe (2). Regl. de subsection 2 . 0 . Re . 267110 s. 9 4 . 1 Ont. 267/10 ar. 9 4 . ( 5) The notes made pursuant to ill Les notes prises en vertu des paragraphes suosections (1) and (3) shall be completed by (l) et (3) doivent etre terminees ala fin de la the end of the officer's tour of duty, except Reriode de service de l'agent, sous reserve where excused by the chief of police. u'une autorisation contraire du chef de 0. Re . 283/11 s. 3. olice. Re 1. de l'Ont. 283/11 art. 3. 14 J

1 Lef.islation Act, 2006, S.O. 2006, c. 21, Loi de 2006 sur La Legislation, L.O. 2006, c. Sc edule F 21, Annexe F Rule of liberal interpretation Solution de droit

~ An Act shall be interpreted as being ~ La loi est censee apyorter une solution tal and shall be given such fair, lar~ it et s'interprete de a maniere la plus and liberal interpretation as best ensures e equitable et la plus large qui soit compatible attainment of its objects. 2006, c. 21 , Sched. avec la realisatiOn de ses objets. 2006, chap. F, s. 64 (1). 21 , annexe F, par. 64 (1).

Same Idem (2) Subsection (1) also ahplies to a (2) Le tearagraphe (lf s' applique egalement a re~ulation, in the context of t e Act under un reg ement, dans e contexte de la loi en w ich it is made and to the extent that the application de laquelle il est pris et dans la re~ulation is consistent with that Act. 2006, mesure ou il est compatible avec celle-ci. c. 1 Sched. F s. 64 (2). 2006 chap. 21 annexe , par. 64 (2).