About the Court Case.

On June 24th, 2009, Levi Schaeffer was shot and killed by a police officer.  

The only other person there and alive to witness what occurred was a second officer- the first officer’s partner.

 The Special Investigations Unit- a civilian law enforcement agency- was called in, as mandated by the Police Services Act, to investigate circumstances involving police and civilians which have resulted in death.

    The investigation unveiled that both officers had been instructed by supervisors to hold off on writing their notes or making any statements until they had both consulted O.P.P.A. lawyers.

The information subsequently submitted to the S.I.U. was written days after the shooting and may have been a mash up of the subject and witness officers’ remembrances because it was vetted for review by O.P.P.A.

 On September 28th, 2009 SIU director Ian Scott announced he was unable to decide if an OPP officer was guilty of wrongdoing in the shooting death of Levi Schaeffer- so no charges were laid.

Last fall the Schaeffer family, along with the family of one Douglas Minty who was also shot by police last June- asked a Superior Court judge to put an end to the long standing practice of lawyer vetting.

It is common practice across the province for officers involved in fatal incidents to have their notes looked over and ‘approved’ by police union lawyers before giving them to the SIU as evidence.

Too often, the same union lawyer will review both subject and witness officers statements.  The section of the Police Act that calls for officers to be segregated until after being interviewed by the SIU is violated through this practice.

SIU Director Ian Scott and Ontario Provincial Police Commissioner Julian Fantino have been squaring off on this issue of lawyer vetting.   The relationship between these two bodies has become so strained that in January, the Attorney General, appointed a mediator to defuse the situation.

The pice and their unions say that officers involved in an incident have a charter right to see a lawyer.  

Julian Falconer, the lawyer representing  the Schaeffer and Minty families- argues that this charter right does not apply to witness officers.





About the case update Jan 2012:

At the Ontario Superior Court, lawyers from the Ontario Provincial Police Association put forward a motion to strike the application put forward by the families.   They effectively convinced the justice presiding to forgo hearing the application on its merits, to declare that the families had neither private nor public interest standing and that the matters before the court were moot.   In September, 2011, the families appealed this decision at the Ontario Superior Court of Appeal.   In a unanimous November 15th, 2011 decision, Ontario’s top court declared that the police note taking behavior in question was not permissible by law and that although an officer could and should speak with a lawyer to seek legal advice, but that they could not postpone finishing notes on time or submit notes that have been first checked and vetted by a lawyer.   In late January, 2012, the Ontario Provincial Police Association began the process of taking the Ontario Superior Court of Appeal decision to the Supreme Court of Canada.   No date is set, but it is expected that these matters may come before Canada’s highest court in December 2012.

Update August 08 2012:

The Coalition Justice For Levi announces that a tentative date of April 19th, 2013 has been set for the Supreme Court of Canada.

A tentative date has now been set for the Supreme Court of Canada to hear an appeal to the unanimous decision made in November, 2011 by Ontario’s top court which clarified that police officers may not consult a lawyer as to the content of their notes before submitting those notes as evidence to Ontario’s police oversight body- the Special Investigations Unit.  On April 19th, 2013, (tentatively) Canada’s top court will hear arguments from police counsel, counsel for S.I.U. director Ian Scott and counsel for the families of Levi Schaeffer and Douglas Minty- two men fatally shot by O.P.P. officers in June of 2009.  At this point in the process, the Supreme Court has ruled that they will not hear from the many police interests seeking intervenor status.

            In late 2009, the Schaeffer and Minty families went to court to ask for a clear, judicial interpretation of the Police Services Act and the particular Ontario regulation laying out the relationship and responsibilities between police and the S.I.U.  At lower court, counsel for the police successfully argued that the families had neither private nor public interest status from which to bring these matters before the courts and that, furthermore, the matters were not justiciable..   The three person panel of judges at the Ontario Superior Court of Appeal found that the lower court judge erred on a great number of matters, granted the families public interest standing and ruled that officers had a constitutional right to speak to a lawyer but that they could not consult as to the content of their notes and could not hold off on handing in their duty notebooks until they had been vetted by O.P.P.A. lawyers.  In its decision, the Ontario Superior Court of Appeal clarified that the personal interests of an officer for self protection or protection of another member of the force must be understood as secondary to the sworn duty that an officer has as a public employee and professional state witness.

            As proceedings now move to the Supreme Court of Canada- counsel for S.I.U. director Ian Scott prepares to argue that the Ontario Court of Appeal Decision did not go far enough and cannot ensure that officers do not continue to vet and obfuscate evidence presented to the S.I.U.- a pattern of systemic police conduct that has inhibited the S.I.U. from capably carrying out its mandate for it’s twenty year history.  Counsel for police prepare to argue that the ruling made by Ontario’s top court is unmanageable to implement and infringes on an officer’s constitutional right to counsel.  Upon first learning that the Supreme Court of Canada might consider granting leave to appeal; counsel for the family initially took the position that the original, unanimous Ontario Superior Court of Appeal decision should be upheld.  Now that the Supreme Court has granted leave to appeal to the police, counsel for the families- Julian Falconer and Sunil S. Mathai will argue that if police are unwilling to uphold the current law as written, then further limitations- as proposed by counsel for the S.I.U. director- must necessarily be put in place to end the practice of lawyer vetting of police notes once and for all.