The court of appeal set aside the application judge’s ruling and held that police officers involved in Special Investigations Unit (the “SIU”) investigations were not allowed to have a lawyer vet or assist in the preparation of their field notes

Administrative law – Decisions of administrative tribunals – Police – Remedies – Declaratory relief – Judicial review – Investigations – Mootness – Parties – Standing – Jurisdiction

Schaeffer v. Ontario (Provincial Police), [2011] O.J. No. 5033, 2011 ONCA 716, Ontario Court of Appeal, November 15, 2011, R.J. Sharpe, R.P. Armstrong and P.S. Rouleau JJ.A.

The applicants, family members of two civilians who were shot and killed in separate fatal incidents involving the police, sought a declaratory judgment that, among other things, police officers who are involved in incidents attracting the attention of the SIU are not entitled to obtain legal assistance in the preparation of their notes regarding the incident. The application was dismissed on the grounds that the applicants lacked standing to sue for declaratory relief and that the issues raised were moot and not justiciable. The applicants appealed seeking that the decision be reversed and that the application be decided on its merits by the Court of Appeal. The respondent Director of the SIU supported the position taken by the applicants.

The respondent police officers involved in the two incidents and the respondent Commissioner of the Ontario Provincial Police argued that the application had been properly dismissed by the application judge, that subsequent amendments to the regulation governing SIU investigations rendered the appeal moot and that, in any event, the Court of Appeal lacked jurisdiction to rule on the substance of the application without a first instance judgment on the merits.

The Court allowed the appeal, holding that the applicants had standing to sue, that the issues raised were justiciable and not moot, and that it was appropriate for the Court of Appeal to rule on certain substantive issues. The Court granted a declaration that police officers involved in an SIU investigation do not enjoy the right to have a lawyer vet their notes or to assist them in the preparation of their notes. Police officers do have the right to obtain legal advice as to the nature of their rights with respect to an SIU investigation, so long as obtaining that advice does not impede the completion of their notes before the end of their tour of duty.

The Court set aside the application judge’s ruling and held that the applicants did have public interest standing to bring the application as they were directly affected by the issue at hand which involved a serious concern regarding the validity of a statute or an administrative action, and there was no other reasonable and effective manner to bring the issue before the courts.

The Court held that the issues raised by the application were justiciable and that amendments to the SIU Regulation did not render moot the issue of whether police officers involved in SIU investigations are entitled to obtain legal advice in the preparation of their notes.

On the issue of jurisdiction, the Court held that s.134(1) of the Courts of Justice Act, R.S.O., c. C.43 permits a court to which an appeal is taken to make an order that the application judge ought to or could have made and to make any order or decision that is considered just. As the conditions specified by s.134(1) were met, and the practical considerations of avoiding unnecessary delay and cost strongly favored resolution in the court of appeal, the Court held it just to deal with the substance of the cases.

The Court held that, while s.7(1) of the SIU regulation conferred upon police officers the right to consult with legal counsel, it should not be interpreted in a manner which undermines or contradicts an officer’s duty under s.9 of the SIU regulation to complete in full the notes of an incident.

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