The Canadian Institute's forum on The Law of Policing

Registration Opens and Coffee Served

Announcements

Use of Force, the Year in Review

• Admissibility of expert evidence: recent appellate cases
• The impact of amendments to the CCC regarding self-defence and pre-emptive assaults by police
  • Case law if any
  • Applicable standards
• Recommendations from coroners’ juries
• Competing experts: a battle between use of force expert witnesses
• Will there be a murder conviction in the shooting of Sammy Yatim?
• Reviews of the Yatim shooting, if published by the time of the conference:
  • Iacobucci Report
  • The OIPRD report
  • Ontario Ombudsman

Networking Coffee Break

Top Cases of the Year

• Important discipline cases
  • The test for grounds for dismissal of a police officer
  • Charter breaches as disciplinary misconduct
• Do police have a duty to produce draft investigative reports?
• Appellate cases involving the LERB
• The Land decision: How should Chiefs decide whether to send a matter to a disciplinary hearing?
  • Should they assess credibility?
  • Examples of how a set of facts could go either way depending on the threshold
• Judicial interpretation of the B.C. Police Act amendments and what it means going forward
  • Judicial reviews
• An update on the YVR perjury prosecutions
• Burridge at the BCCA
• Unionization of the RCMP at the SCC
• Application of labour law principles to police discipline

Civil Litigation Update

• The Pompeo appeal
• Civil disclosure of witness statements made in the course of SIU/IIO-type investigations
• Implications of Penner
• Sexual harassment cases and other lawsuits initiated by police officers
• RCMP disability class action
• Lawsuits initiated by police officers

Networking Luncheon for Delegates and Speakers

Body-Worn and Dashboard Cameras: Pros and Cons

• Use in court
  • Use of recordings to refresh memory: are the recordings notes or extrinsic evidence?
  • Any admissibility issues
• The tension between authenticity of officer recollections and accuracy of recordings
• Implementation challenges
• Body-worn vs. dash cams
• Disclosure issues
• Data retention policies
• Dangers of relying on them too heavily: objective recordings vs. officer perceptions
• The role of the video in assessing use-of-force decisions
• Privacy issues
  • Use in private spaces
• The interplay with citizen video

Networking Coffee Break

Policing Protests

• The role of police in dealing with protests
  • Balancing competing rights
  • Charter issues
• If an injunction is required, who gets it?
• Under what circumstances will a court grant an injunction?
  • What evidence will justify limiting freedom of expression in the interests of public order?
• Elements of an effective injunction
  • What should be in it?
  • Use of templates
• Enforcing injunctions
• Civil remedies vs. criminal charges, such as mischief

[Kyle Friesen was an] “Excellent speaker, highlight of the day”
– Mike Proctor, S/Sgt Ops. Support NCO, RCMP Edmonton, 2013 participant

Proceedings Adjourn

Coffee Served

Announcements

Concurrent Investigations between Homicide and the IIO, SIU and Similar Organizations

• How much should the IIO-type organization cooperate, e.g. share statements and evidence with the police force?
• What if a witness cooperating with the IIO subsequently becomes an accused?
• Contrasting the approaches of the IIO and Ontario’s SIU
• Risks both investigative agencies face in dealing with these issues
• The MOU between the IIO and BC police departments.

Networking Coffee Break

Recent Developments in Privacy and Access to Information

• The content of pre-employment and related police checks
  • How will police forces respond to Elizabeth Denham’s criticisms?
  • The CCLA report
  • Judicial review in Ontario regarding release of information about suicide attempts
• Dealing with access to information requests regarding complaints against police
• Police Chief Associations and Access to Information
  • An update on the BC’s Information & Privacy Commissioner’s recommendation made in April 2014
• Lessons from Project Operation Warrant Execution
• Public notifications regarding dangerous or sexual offenders in the community
• Media access to information regarding a hearing that does not proceed, for example because the officer resigns
• Significant cases and legislative initiatives of the past year
  • OPC concerns about RCMP procedures
• Privacy and missing persons investigations
• The constitutional challenge to PIPEDA
• Should a record submitted for the purpose of appeal be available to the public?
  • Recent litigation at the ABCA and in the UK

The Ethics of Police Law: Schaeffer/Wood and Other Ethical Issues

• Implications of Schaeffer at the SCC
  • The public vs. private interests of officers when it comes to obtaining legal advice
  • Subsequent developments at Ontario’s Divisional Court
  • The response of law societies in various provinces
• Joint retainers and the duty of candour
  • When candour can lead to collusion or its appearance
  • Conflicts between the ethical duty of lawyers and the public/ statutory duty of officers
  • Cost implications for unions
• Can a lawyer represent the chief and an officer in for example an appeal proceeding?
• Can in-house counsel represent the chief sometimes and members sometimes? On different occasions?
• What about defending police officers and challenging a force as part of a criminal defence?
• The role of counsel for subject officers in IIO and similar investigations
  • Balancing protecting the client’s individual interest vs. public duty
• The role of counsel when attending at interviews with police officers
• The role of in-house counsel
  • When a chief of police or oversight agency is not satisfying disclosure obligations
  • Advising on inherent conflicts of interest, such as a chief investigating alleged misconduct for which the force may have vicarious liability

Luncheon for Delegates and Speakers

Dr. Plecas, a distinguished criminologist, chairs the Blue Ribbon Committee on Crime Reduction which is due to report to the Minister of Justice in advance of this conference. In his keynote address, he will discuss the opportunities and challenges of police collaboration with social services and health providers.

Round Table: Today’s Hot-Button Topics

• Harassment of citizens outside the workplace
• The Auditor General’s Report on First Nation Policing
• An update on use of police dogs
  • The Pivot Legal report
  • Proposed new regulations in B.C.: how far will they go?
• Can police boards and forces delegate policy-making authority to an association of police chiefs?
  • Administrative law issues
• An update on the RCMP investigation into activities of the RCMP members of the BCACP, on orders of the Commission for Public Complaints Against the RCMP
• Disclosure in disciplinary proceedings: is it the same as Stinchcombe?
  • What disclosure should an officer get before being asked for a statement or interview? His or her report? Radio transmissions? Should the officer be allowed to refresh his or her memory?
• Reconciling conflicting recommendations from coroners’ juries
• McNeil: The unofficial consequences
  • Practical developments at ground level
  • Are prosecutors not approving charges because of who the investigator is?
  • Are members with poor records not being assigned to cases or moved off them?
  • Are police with poor records attempting to stay out of court to avoid disclosure
  • The consequences of over-reporting minor transgressions without notice of formal discipline
  • Is deceit becoming less of a career-ender?
• Any follow-up on the RCMP corruption study
• Mental health issues in the police workplace
• Accommodation: how many non-operational people can a force support?
• The intersection between mental health/accommodation and human rights
• Safe and respectful workplace
  • Holding people accountable
  • WorkSafe BC requirements
  • Supervisor liability/accountability for failure to address bullying and harassment issues
• ADR in police discipline
  • How has the OIPRD’s new ADR program been working?
• Dealing with officers who have retired a step ahead of disciplinary proceedings, where there is no jurisdiction to discipline retired police
  • What can you say to prospective employers from other forces
  • What can you say to non-police prospective employers?
  • What can you say publicly?
  • Use of consents when hiring
  • Dealing with unresolved matters that won’t go away.
• Lacunae in the amended BC Police Act
  • When the Police Complaint Commission refers a matter to a public hearing, is the appointed external lawyer independent or taking instructions from the PCC? Can the lawyer drop some allegations if they are not borne out by evidence?
  • Consequences of the statute’s lack of a requirement that there be evidence of misconduct before a hearing is ordered

Proceedings Conclude