The Supreme Court’s blockbuster Bedford decision on prostitution rightly dominated the news on Friday. But a ruling released the day before, while largely falling under the media’s radar, is in many ways just as important.
In Wood v Schaeffer, the Court held that a police officer who shoots and kills a person in the line of duty cannot consult with a lawyer before writing his or her notes about the incident. Even though the officer could inadvertently expose herself to civil or criminal liability, the public’s need for a reliable record of events makes it inappropriate to permit lawyers to influence the way in which notes are made.
The Court didn’t suggest that officers who obtain legal advice would deliberately lie. To the contrary, it insisted that most officers would try to produce a faithful record of events, even if they were subconsciously motivated to rationalize their behavior.
The problem, then, is not that officers would actually lie. It is that members of the public might believe that the notes had been doctored. The public needs assurance that, when law enforcement agents shoot people, they will be accountable. That confidence would be lost if there is a perception that defense lawyers can influence the investigation of officers.
At the bottom of the Court’s reasoning, then, lies a simple idea: sometimes, the need for public assurance is valuable in and of itself. The fact that things have actually worked the way they should is not always enough – we need to be able to see that they are working.
We can see the value of public assurance in many contexts. Consider the common expression that justice must not only be done, it must be seen to be done. If the courts are to function effectively in the resolution of disputes, people must have confidence that they will act impartially, weighing the arguments of both parties in good faith. And so we have come to expect that judges and administrative actors will give reasons for their decisions. We expect judges to recuse themselves from cases, not only when they have an actual interest in the outcome, but when there is a reasonable perception that they might be biased.
But the value of assurance goes beyond judicial or police procedure. We require employers to keep records to show that they have maintained machinery in safe working order. We expect people who sell meat to be in a position to tell us where and when they got it. It is a criminal offence not to do so. Some have objected that this kind of behavior is not the sort of thing that should be criminalized. The rationale, though, is straightforward enough. People who engage in activities that pose a risk to members of the public have an obligation to provide an assurance that they are doing so in a way that minimizes the danger.
A broadly analogous sort of public concern animated the creation of the Special Investigations Unit. There was a deep sense of unease surrounding the investigation of police officers by police officers – a perception that law enforcement could use force against private citizens with virtual impunity. It would defeat the purpose of that legislation to allow police officers to consult a lawyer before creating a record of the events to be investigated.
When people engage in dangerous activities in low-visibility settings, the public is rightly concerned that they or others will be subjected to unacceptable risks. In appealing to the value of public assurance, the Court has drawn a direct line between policing and other morally risky activities that, owing to the special dangers they present, require special assurance. In this, as in other highly regulated activities, bureaucracy is an end in itself.
Michael Plaxton is an associate professor of law at the University of Saskatchewan