The biggest news out of the Supreme Court of Canada last week was the decision on three prostitution related laws in Canada (Attorney General) v. Bedford, 2013 SCC 72. But, a case that could see more citations as time goes by is Wood v. Schaeffer, 2013 SCC 71. Defence counsel may seize upon the obiter comments of the majority (endorsed by the minority as well) regarding the duty of police officers to keep notes.
The Wood case concerned the interpretation of regulations under the Police Services Act (Ontario) relating to the duties of police officers involved in investigations by Ontario’s Special Investigations Unit (a civilian investigative agency which investigates serious injuries and deaths in which police were involved). Primarily, the Court’s focus was on the interpretation of legislative provisions which required officers to complete notes on an incident under investigation. The issue was whether the right to counsel contained in the regulation allowed witness and subject officers involved in the SIU investigation to consult counsel before preparing the notes required. To that, the Court answered in the negative: Ontario’s regulatory provisions require officers to prepare their notes in an incident involving serious injury or death of a civilian before they can exercise the right to counsel under the regulation. Not addressed by the Court (because it was not live in the case) is whether any such notes would violate a Charter right to silence on the part of a subject or witness officer, in the event criminal proceedings were commenced against them.
In the course of the majority’s reasons, Justice Moldaver commented on the existence of a duty on the part of police officers to keep notes. Justice Moldaver noted that it was common ground among the parties that such a duty does exist, but noted there was a dearth of direct authority on this point. After citing an advisory committee report and a report from a public inquiry, Justice Moldaver concluded:
Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin [in the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993)], such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act. [The Police Services Act (Ontario)]
While this statement references Ontario legislation, it is clear that it is the view of the Court that such a duty exists independent of Ontario’s legislation. I expect this passage and the surrounding paragraphs to see some play in future court decisions, including assessments as to the credibility of officers who testify to facts not referenced in their notes and reports.