SCC decision lauded, forces officers to write independent notes

Toronto criminal lawyer Roots Gadhia says the Supreme Court decision that police shouldn’t be allowed legal advice prior to handing in their notes recognizes the importance of independent recollection of incidents involving the public.

“Police officers under the Police Services Act are required to take good notes as an incident transpires or just after it happens,” says Gadhia. “Why they’re required to do so is to ensure their own independent recollection and to ensure no argument can be made for making notes that are falsified or fabricated.”

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.”

Gadhia says the court recognizes the level of trust the public has that the officers make their notes as soon after the incident as is possible.

“It helps retain significant pieces of information that would be used in trials later on,” says Gadhia. “If they can write their notes together, they’re in collusion and that takes away from the authenticity of an independent recollection and the truth of the statement and the evidence of that statement as being truthful.”

In the case of the shooting death of 18-year-old Sammy Yatim on a Toronto street car earlier this year, barring the numerous video recordings, Gadhia says if police officers were able to sit down and write their notes together and seek legal advice, “those officers may have made it sound like the officer may have had no choice but to shoot because of Yatim’s behaviour.

“When you have every single officer writing their notes together, it takes away their credibility. They’re not writing it from their perspective of hearing and seeing the events, and there is likely a reason why they colluded to write their statements together. This decision recognizes that.”

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