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SCC decision puts public interest, police accountability in spotlight

The Supreme Court of Canada's decision to reject the appeal by police that officers should be allowed to seek legal advice prior to turning in notes proves oversight and transparency trump the right of the public official, says Toronto criminal lawyer John Rosen.

"The SCC had mandated that police officers involved in an incident in which an SIU investigation is directed cannot first speak to counsel before preparing their notes and turning them over to supervisors and investigators," says Rosen, partner at Rosen Naster LLP. "From the public’s perspective, the case puts the public interest ahead of those affected in an effort to protect transparency and accountability, and that is a good thing."

By a 6-3 margin, the high court rejected the police argument that officers be allowed legal counsel prior to submitting their notes, particularly in investigations by the province's police watchdog, the Special Investigations Unit.

Justice Michael Moldaver wrote in the decision that the public trust in the police is of "paramount" concern and "this concern requires that officers prepare their notes without the assistance of counsel."

There are two implications to the decision, says Rosen. "The first is the obvious impact on police officers in the field. The second impact, which is more subtle, is the distinction the SCC makes between the general right of a citizen to the advice of a lawyer in the face of an investigation and the absence of that right now for those governed by regulation who are being investigated for their conduct."

In this case, says Rosen, "as long as a police officer chooses to keep his or her badge after the incident, the officer’s right to counsel is abrogated by legislation."

This implication may mean that others who are similarly impressed with a regulated duty (firemen, coast guard, EMS personnel, securities, fisheries, etc.), "may become constitutionally disentitled to the right to counsel by legislation."

Most pieces of legislation do not go this far at the present time, Rosen says, "but the case may cause regulators to review their legislation with this in mind."

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