Police officers are not ordinary citizens. That may sound obvious, but a decision of the Supreme Court of Canada earlier this month strikingly illustrates two of the differences: Police are authorized to use deadly force, but when they do kill people, they do not enjoy all of the same rights as ordinary citizens under investigation. With their special powers must come special obligations.
The court rightly placed limits on the right of police officers to not incriminate themselves, and on their right to consult a lawyer at their earliest convenience.
The cases involved two police shootings, after which police sought the help of lawyers in preparing or revising their notes. The court avoided any suggestion that police officers would necessarily skew their notes as a result of meeting with a lawyer. Instead, Justice Michael Moldaver, who wrote the majority opinion, said that a lawyer's advice might shift the "focus" of the notes, and he emphasized the point that "appearances matter." They do.
Both of the cases came from Ontario, where an independent Special Investigations Unit, made up of civilians, investigates all deaths or serious injuries at the hands of police. The question of who investigates police, and how, is of national importance: two weeks ago, a Quebec coroner found that investigators failed to ask a key question after the police shooting of a teenager called Fredy Villanueva – an example of police investigations of police being undesirable.
In both the cases before the Supreme Court, a man refused to drop a knife and was shot. In both cases, officers were instructed by their superiors not to write any notes about the incident, until they had spoken to a lawyer. And in one of the cases, the notes were not finished until a lawyer reviewed a draft.
Ian Scott, then the director of the SIU, concluded that he could not adequately assess the cases because the resulting notes were not independent enough or close enough in time to the events. Police officers have a duty to make notes promptly, in order to take advantage of fresh memory – and thus, greater accuracy.
The families of the dead men sued for a declaration clarifying the rights and duties of police officers, which the court granted. But this will hardly be the last case in which these issues arise.
"Quis custodiet ipsos custodes?" said the Roman poet Juvenal. Who will guard the guardians? The Supreme Court's decision helps to clarify that it cannot be the police themselves.