December 2015 Update
Police Accountability and the Law Course
I’ll be back at Western teaching a Police Accountability and the Law course for the month of January again. Western Law School has a January term or ‘J-term’ where it offers a one month intensive course for upper level students. This course is based upon my book, Issues in Civilian Oversight of Policing in Canada, published by Carswell in 2014.
Articles in Nunasquiat News
Check out these December 2015 articles in the Nunasquiat News, the online paper for Nunavut, where I was quoted as an expert on police oversight:
- Nunavut man “outraged” by police misconduct dismissal, Legal experts say Nunavut needs civilian oversight of RCMP
- RCMP brass say OPS excessive force investigation is sound, “We have full confidence that these external investigations are thorough and independent”
Phil’s Shed Party
In January, I’ll be joining Philip Slayton for an interview as part of his podcast series on topics he thinks others will find interesting. A Shed Party is a Newfoundland tradition where people gather in a shed or a garage on a Friday night, talk, and maybe drink and dance. Phil has combined this concept with a ‘Ted Talks’ approach.
Here’s a link if you’re interested
And here’s the first episode:
Phil is an interesting fellow in his own right – Rhodes Scholar, former Dean of Western Law School, former president of PEN Canada, and author of Lawyers Gone Bad and A Mighty Judgement, among other books. Someone should interview him!
Newstalk 1010 Interview
Jim Richards of Newstalk 1010 will be airing an interview with me later this month as part of their 2015 year-end roundup on topical news stories. In my case, the talk is about police accountability which received a lot of attention due to the shooting of Sammy Yatim on a TTC streetcar by Toronto police constable James Forcillo in July 2013. I laid a second degree murder charge against the officer that summer in my role as director of the province’s Special Investigations Unit. Not sure when it will be aired, but I’ll link in the podcast in my next blog.
- On February 22-23rd, 2016, I will be speaking in Tbilisi, Georgia at a conference organized by the George Soros Open Society Georgia Foundation. Georgia is in the process of drafting a law to establish a mechanism to investigate allegations against incidents involving law enforcement agencies, and its drafters are interested in learning about my experience with Ontario’s Special Investigations Unit.
- And on March 16-17th, I will be participating in a conference in Port of Spain, Trinidad called ‘Challenges and Benefits of Oversight Bodies and Civilian Oversight Institutions’ organized by the country’s Police Complaints Authority. The conference will end with a discussion on whether to adopt a constitution for a proposed association of oversight organizations for the Caribbean region.
November 2015 Update
Salhany’s Police Manual of Arrest, Seizure & Interrogation (Eleventh Edition)
The eleventh edition of Salhany’s Police Manual will be published this month. The Honourable Roger Salhany began this publication thirty years ago; Joseph Martino and I took it over five years ago, wrote the tenth edition in 2010, and have updated it this year. The Manual provides a practical guide to law enforcement officials on issues of the status and liability of police officers, powers of arrest, search and seizure, interrogation and interviewing witnesses. Also, the following significant appellate cases are referred to in this edition:
- Aucoin 2012 SCC 66, reminding the law enforcement community that the common law authority to detain a citizen is an extraordinary power and will not be lawful unless the manner in which the detention power is exercised was reasonably necessary;
- Chehil 2013 SCC 49, a further and important step in the understanding of the reasonable suspicion standard which endorsed the limited use of profiling in appropriate circumstances, and established that the standard was about reasonable possibility (not probability) of crime;
- Cole (2012), 290 C.C.C. (3d) 247 (S.C.C.), where school board offiicials passed a teacher’s computer to the police when child pornographic imagery was found on it, the court ruled a warrantless search of its contents was unreasonable – the police should have sought a search warrant;
- Fearon SCC December 11, 2014, permitting police to search a cellphone found on a person after a lawful arrest;
- Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, which considered the police use of its common law powers in the Toronto 2010 G20 Summit context when officers targeted demonstrators walking down a public street and required them to submit to a search if they wished to proceed;
- Hart 2014 SCC 52, laying down a new common rule for the admission of confessions made during police undercover “Mr. Big” operations;
- MacDonald, 2014 SCC, stating that the pushing of a door constitutes a search because it goes beyond the implied invitation to knock;
- MacKenzie 2013 SCC 50, affirming that a police officer’s training and experience were legitimate considerations in determining whether the reasonable suspicion standard was established;
- Quesnelle 2014 SCC 46, holding that the Crown has no duty to disclose police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted as part of the Crown disclosure process;
- Telus, 2013 SCC 16, prohibiting the use a general warrant in circumstances where the police should have applied for a wiretap authorization;
- T.G.H. 2014 ONCA 460, holding that an accused person was detained and therefore entitled to be re-advised of his rights to counsel when, some ten months after his initial arrest and subsequent release, the police executed a general warrant to take him to hospital to examine his anus; and
- Wood v. Schaeffer, 2013 SCC 71, commenting upon the importance of policer officers’ notes and prohibiting conferral with lawyers before the writing of notes in SIU investigations.
For more information, click here.
Chroniques du Sommet interdisciplinaire sur l’usage de la force.
You may recall that I attended a conference in Nicolet Quebec last April and about the Special Investigations Unit experience in Ontario. The organizers published a book based upon the papers presented at the conference named Chroniques du Sommet interdisciplinaire sur l’usage de la force. The publication includes a chapter written by me entitled ‘Le developpement de la surveillance civile en Ontario’; it was originally included in my Issues in Civilian Oversight of Policing in Canada’, translated by the publishers and included in Chroniques.
For more information click here.
Ontario College of Trades
On September 30th, 2015, I presented an all-day course on the ‘Fundamentals of Investigations’ to Ontario College of Trades investigators at its training conference in Guelph. The course covered general principles, planning, and interviewing related to investigations, as well as analyzed a case study relevant to this focus group. It was organized by the Workplace Institute – more information may be found at this website.
Police Services Act Adjudicators and Prosecutors Seminar
On November 19th, 2015, I return to the Fern Resort in Orillia to speak to police prosecutors about presenting a police disciplinary case under the Police Services Act. 2015 is the thirteenth year this course has been presented by Adjudicator Morris Elbers.
September 2015 Update
Teaching at Western Law School
I’m back teaching criminal procedure at Western Law School this fall. The course cover the nuts and bolts of criminal procedure – from police investigative powers such as search and seizure, investigative detention, interrogation, arrest, bail, and the trial process. All this is important to any law student interested in practising criminal law. However, the more interesting aspects of the course grapple with the impact of the Canadian Charter of Rights and Freedoms on the tension between the rights of the accused and effective law enforcement. What is the right balance between the needs of justice in this post-Charter age and the truth?
Ontario Review Board
I previously posted that I was appointed to the Ontario Review Board. The Board annually reviews the status of those who have been found not criminally responsible or unfit to stand trial on
account of a mental disorder. I am now one of its alternate chairs, responsible for chairing hearings and writing up reasons for its decisions.
Investigations Counsel – Ontario Judicial Council and Justices of the Peace Review Council
I have been retained on a number of matters by the the Ontario Judicial Council and the Justices of the Peace Review Council to conduct investigations into allegations of misconduct into judicial officers. All of these investigations are conducted in confidence within the statutory framework set out in the Ontario Courts of Justice Act.
Interview on Metro Morning on the Jermaine Carby Investigation
Listen to my July 24, 2015 interview with Metro Morning’s Matt Galloway on a report by the province’s Special Investigations Unit into the police shooting death of Jermaine Carby last year. There were allegations of tampering of evidence at the incident scene
Interview with the Canadian Civil Liberties Association
July 2015 Update
G20 Summit Fifth Anniversary
The Toronto Star ran a series of articles on the fifth anniversary of the Toronto G20 Summit. In a couple of them, I was quoted. Here they are:
In a front page article in its June 28, 2015 edition entitled What’s Changed Since G20?, I was one of the few commentators who said there were a few positive things that came from the Summit. I said, ” ‘… there are now greater controls over the use by police of long-range acoustic devices, sometimes called sound cannons. Also, the recent Court of Appeal decision in the case of protester Paul Figueiras, which found that York Region police violated his Charter rights when they prevented him from approaching the security fence unless he submitted to a search, set a clear precedent for future events.’
‘Are these things going to prevent another G.20? Probably not,’ says Scott. ‘There are little incremental steps that have taken place. It’s not all-embracing, but that may be the Canadian way. We’re not good at revolutions here. We’re good at baby steps.’ ”
And the next day, June 29th, in a follow-up article entitled ‘Police face little accountability, five years after the Toronto G20’, I was quoted on the issue of G20 officers removing their police identification: “Former SIU director Ian Scott said the low number of criminal charges can be attributed, in large part, to ‘big issues’ the watchdog faced in attempting to identify officers who were wearing face masks at the time and had removed their badges.
He said the nearly 100 officers docked a day’s pay for removing their identification “should have been subject to much more serious discipline.”
‘This has the aura of complete unaccountability,’ he said. ‘It was a very serious affair that was handled very lightly by the Toronto police.’
Scott also expressed concern about the fact that there is still no decision in the disciplinary hearing of the only upper-command officer to face misconduct charges.’ ”
Caribbean Oversight Conference Invitation
I have been invited by the Trinidad and Tobago Police Complaints Authority to speak at the first Caribbean oversight of law enforcement conference. It will take place in Port of Spain, and I look forward to participating in this event in March next year.
June 2015 Update
Read my comments in the Sunday June 14th Toronto Star article on the perils of forensic sciences in the criminal justice system in an article entitled: Why it’s so hard to keep bad forensics out of the courtroom? Here’s the link with an excerpt from the article
Toronto lawyer who has worked for the Crown and defence, former director of Ontario’s Special Investigations Unit
“I think the way that we can contain the potential of being misled in the forensic area is first of all to make sure that the Centre of Forensic Sciences (the provincial facility that does testing for all investigative agencies in Ontario) continues to be well-funded. They have to view themselves as scientists and not partisans. They have to continue to see themselves as people that are involved in writing reports in scientific analysis and be equally as open (to) talking to the defence as the Crown.”
Also, the eleventh edition of Salhany’ s Police Manual on Arrest, Seizure & Interrogation has been submitted to the publishers this month for editing and production. Stay tuned for its arrival this fall.
May 2015 Update
As indicated in my April Update, this has been the month of conferences. Here’s a rundown of them
Sommet interdisciplinaire – April 30th & May 1st – Nicolet, Quebec
Quebec will be starting its own Bureau des Enquetes Independantes in the near future, and I spoke Sommet interdisciplinaire sur l’usage de la force in Nicolet, Quebec at the Ecole Nationale de Police du Quebec. Here’s a photograph of me attempting to keep up in the other official language:
And here’s a link to my PowerPoint slides in French (I have to admit I cheated – I spoke in English and a very bilingual lawyer translated my speech as I spoke:
CACOLE Conference – May 11th – Ottawa Ontario
At the annual Canadian Association for Civilian Oversight of Law Enforcement conference, held this year in Ottawa, I spoke on the cases that have arisen from the 2010 G20 Summit in Toronto. Below is a copy of my PowerPoint slides:
Effective Models of Independent Investigation of Torture and Ill-Treatment Workshop – May 20th & 21st – Yerevan, Armenia
And, finally, I spoke at a conference in Yerevan, Armenia sponsored by the Open Society Justice Initiative. I was one of the experts, along with the Chair of the English Independent Police Complaints Commission and the Assistant Commissioner of the Jamaican Independent Commission of Investigations. The workshop had representatives from Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Ukraine, Russia, Hungary and Serbia. For those of you who can read Russian, here’s a copy of my PowerPoint slides in that language. Needless to say, I delivered my talk in English.
In the evening, our Armenian hosts took the conference delegates to restaurants that served delicious local cuisine and had local musicians serenading us during the meal:
April 2015 Update
- R. v. Weddell, unreported decision of Ellies, J. (S.C.O.), released May 31, 2013
- R. v. Andalib-Goortani, unreported decision of Botham J. (O.C.J.); sentence appeal allowed, January 29, 2015
- Wall v. OIPRD, 2014 ONCA 884
- A ruling in Toronto Police Service v. Insp Fenton
- Figueiras v. Toronto (Police Services Board), 2015 ONCA 208
For information on this conference, check out this link: www.cacole.ca.
March 2015 Update
Speaker at CCLA Event
On March 10th, I was a member of a panel discussion hosted by the Canadian Civil Liberties Association on the topic of ‘Police Body Worn Cameras (‘BWC’)’. Other panelists were Abby Deshman – Public Safety Program Director at the CCLA, Stephen McCammon – counsel for the Information and Privacy Commissioner, and Gerry McNeilly – Office of the Independent Police Review Director. The two hour discussion involved the intersection of the efficacy of police BWCs with the impact upon police information gathering. While everyone agreed that video imagery captured by BWCs can be useful in assessing police-public interaction, the other side of the coin were concerns raised about surveillance, privacy, data retention, and disclosure of the imagery to third parties.
Another Edition of Salhany’s Police Manual Manual Forthcoming
I have entered into a contract with Carswell Legal Publishers to produce the eleventh edition of Salhany’s Police Manual of Arrest, Seizure & Interrogation. The first nine editions of this publication were written by The Honourable Roger Salhany. formerly a judge of the Superior Court of Justice. In May 2010, Mr. Salhany asked me to follow him as the author of subsequent editions of the Manual. I agreed, and with Joseph Martino – counsel at the SIU -, wrote the tenth edition that was published in 2011. That edition is now four years old. With the changes in the case law, most notably in the area of search and seizure, we are updating the Manual with a new edition which will be published later this year.
February 2015 Update
Ian joins the Ontario Review Board.
Last month, I was appointed by the province to the Ontario Review Board (‘ORB’). The ORB annually reviews the status of every person who has been found to be not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder. It is established under the Criminal Code. The Board is made up of judges, lawyers, psychiatrists, psychologists and public members appointed by the Lieutenant Governor in Council.
January 2015 Update
Police Accountability & the Law
#5828c – 001
January 2015 Term
Professor Ian Scott (Adjunct)
|1||Tuesday January 6||Course Introduction||None, Course syllabus and proposed essay topics distributed|
|2||WednesdayJanuary 7||Oversight Overview||Scott (ed) – ch. 1 ‘Introduction’, ch. 2 ‘Oversight Overview’, ch.3,‘Civilian Review of Police Oversight in the Federal System’;‘Reforming Public Complaints Against the RCMP,  59 Crim L.Q. 163*Available through OWL|
|3||Thursday January 8||Ontario Oversight – OIPRD & SIU||Scott (ed) – ch. 6 ‘Development of Civilian Oversight in Ontario’Parts V & VII – Police Services ActAdams Report (1990)*;LeSage Report (2004)*;*Available online|
|4||FridayJanuary 9||Other Legal Mechanisms of Accountability for Police Use of Force||Scott (ed)- ch. 8 ‘Other Legal Mechanisms of Accountability for Police Use of Force’;s. 25, 34, 504 Criminal Code;R. v. Tran 2010 ONCA 471;Ward v. Vancouver (City) 2010 SCC 27;Black Action Defence Committee v Huxter (1992), 59 O.A.C. 57 (Div. Ct.);Part 10 of the Braidwood Inquiry Report*;Taman Inquiry Report** Available online|
|5||MondayJanuary 12||Oversight & the G20 Summit||Scott (ed) – ch. 7, ‘Civilian Oversight and the G20 Summit in Toronto’;Ombudsman’s Report on Public Work Protection Act*;OIPRD Report on G20*;Morden Report**Available online|
|6||TuesdayJanuary 13||Civil Litigation as a Vehicle for Police Reform||Scott (ed) – ch. 11, ‘Civil Litigation as a Vehicle for Police Oversight Reform’;Odhavji Estate v. Woodhouse 2003 SCC 69;Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41;Penner v. Niagara Regional Police Services Board,2013 SCC 19|
|7||WednesdayJanuary 14||Civil Litigation as a Vehicle for Police Reform (continued)Police-Gov’t Relations||Roach, ‘The Overview: Four Models of Police-Government Relations’**Available online|
|8||ThursdayJanuary 15||Guest Lecturer – Mr. Gerry McNeilly, Director OIPRD||OIPRD G20 Report Policing the Right to Protest*, OIPRD 2014 Annual Report**Available at the OIPRD website|
|FridayJanuary 16||Research & Writing Day|
|9||Monday January 19||Specific Issues involving Ontario’s Special Investigations Unit||Scott (ed) – ch. 13 ‘The Road to Independent Police Officer’s Notes in SIU IncidentsSchaeffer v. Wood 2013 SCC 71Scott – ‘Reforming Ontario’s Special Investigations Unit’,  60 Crim. L.Q. 190 available through OWLOmbudsman Reports on the SIU (2008) & (2011)*;SIU Annual Report**Available online|
|10||TuesdayJanuary 20||Models of Civilian Police Review||Scott (ed) – ch. 14 – ‘Models of Civilian Police Review’|
|11||WednesdayJanuary 21||Oversight from an International Perspective & Discussion of Questions Posed in Course Description||Ramashai v. Netherlands,  ECHR 52391/99*Adams Report (1998) pp. 75-77*Part V11 of the Police (Northern Act) 1998 of Northern Ireland*Fyfe & Skolnick, Above the Law: Police and Excessive Use of Force, pp. 193-205**Available through OWL|
|12||ThursdayJanuary 22||Guest Lecturer: David Humphrey, eminent defence counsel & co-counsel on Schaeffer v. Wood||Defence closing address in police shooting case*Appellant’s factum in Schaeffer v. Wood**Available through OWL|
|13||FridayJanuary 23||Student Presentations|
|14||MondayJanuary 26||Student Presentations|
|15||Tuesday January 27||Student Presentations|
|16||WednesdayJanuary 28||Student Presentations &End of Classes|
|FridayJanuary 30||Essays Due by Noon|