Law Times

PAGE 2 NEWS February 6, 2012 • Law Times BY KENDYL SEBESTA Law Times A s an Ontario police union seeks leave to appeal a re- cent ruling on lawyers' actions in Special Inves- tigations Unit cases, the Law So- ciety of Upper Canada is getting set to release a practice guide on counsel's responsibilities in such matters. Th e moves follow the On- tario Court of Appeal's ruling in Schaeff er v. Wood, which dealt with the deaths of two men who had been interacting with police. Among other things, the ruling declared that the Police Services Act doesn't permit "police offi cers involved in an SIU investigation to have a lawyer vet their notes or to assist them in the preparation of their notes." But according to the Barrie Advance, the Ontario Provincial Police Association is seeking leave to appeal the ruling at the Supreme Court of Can- ada. "It tells offi cers that the Charter of Rights and Free- doms sort of applies to you but not really," association president Jim Christie told the newspaper. "In basic terms, the Court of Appeal's decision has really confused the issue in terms of an offi cer's right to counsel," Christie added, noting that what the ruling is saying is that "an offi cer can speak to counsel, but they can't give advice on notes. Th at is a less- er standard under the Char- ter of Rights and Freedoms than is given to a citizen." In a related matter, the law Act to prevent police offi cers involved in SIU matters from communicating directly or indirectly with any other of- fi cer involved in the same in- cident until the investigative body has completed its work. Bentley asked the LSUC society has responded to a re- quest by former attorney gen- eral Chris Bentley to provide commentary on what lawyers can legally do while represent- ing two or more police offi cers 'It just boggles my mind how much power police have in controlling SIU investigations,' says Julian Falconer. involved in SIU matters. Bentley made the request in June aſt er the government introduced a regu- lation under the Police Services to add commentary to its Rules of Professional Con- duct that would advise law- yers representing one or more offi cers not to disclose confi dential information to other offi cers involved in the same incident. In response, the law society said it would issue practice guidance on the matter. "Th e law society will be publishing a practice guid- ance on this subject that will also make reference to the recent decision of the Court of Appeal in Schaeff er v. Wood," LSUC Treasurer Laurie Pawlitza wrote to Bentley's successor, John Gerretsen, on Dec. 21. According to Schaeff er, an Ontario Provincial Police of- fi cer killed Levi Schaeff er on June 24, 2009, two days aſt er a Huronia West OPP offi cer shot Doug Minty of Elmvale, Ont., fi ve times. An investigation by the SIU raised several questions about the timing of the police of- fi cers' notes and how they com- piled them. In response, both Minty and Schaeff er's families launched lawsuits aſt er learning the same lawyer had advised po- lice as they completed their notes and had represented several of- fi cers in both investigations. In addition, there was evidence that police, aſt er writing a fi rst set of notes following an incident, would tender a second version aſt er consulting with a lawyer. "I don't know what on earth the police chiefs are thinking when they advocate for two sets of notes," says LSUC Bencher Ju- lian Falconer, who represented both the Minty and Schaeff er families in Schaeff er. "It makes little to no sense, Reach one of the legal and business markets in Canada! particularly because we never have any way of knowing what was on that fi rst set of notes. It just boggles my mind how much power police have in controlling SIU investigations." While Falconer, who's also a member of the law society com- mittee looking at the upcoming practice guidance on the matter, declined to comment on the tim- ing and substance of it, he says the Schaeff er case raises impor- tant questions for lawyers. "It really calls into question for lawyers the line between the aggressive defence of a client and being the pipeline for informa- tion," he says. "In this case, we had offi cers Online Print and in With 250,000 page views a month, canadianlawlist.com captures your market The all-new canadianlawlist.com features: — A fresh new look, designed for improved user experience — Effective new ways to reach the legal market — Gold and silver advertising packages For more information contact: Colleen Austin at 416-649-9327 or toll free at 1-800-387-5351 colleen.austin@thomsonreuters.com www.lawtimesnews.com CLL Web promo - CLL Dir..indd 1 12/8/11 10:58 AM preparing notes that they shielded from the outside world; a lawyer who came back and vetted them before anyone else could see them; and a second set of notes that leaves us with the perception that we've been deceived." But Christie, speaking to the Advance, sees the issue diff erently. "A lawyer's job isn't to tell me what to write into my notebook," he told the newspaper. "A lawyer's job is to provide calm, third-party legal advice on how this may aff ect you." LT Lawyers awaiting guidance on duties in SIU cases OPP association seeks to appeal ruling on consulting counsel about notes largest more than

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