Prosecuting Police Services Act Cases Adjudicators & Prosecution Course 2014 Ian D. Scott Lawyer Suite 1900 439 University Ave Toronto Ontario M5G 1Y8.

Prosecuting Police Services

Act CasesAdjudicators & Prosecution Course

2014Ian D. ScottIan D. Scott

LawyerLawyer

Suite 1900 Suite 1900

439 University Ave439 University Ave

Toronto Ontario M5G 1Y8Toronto Ontario M5G 1Y8

(o) 416-459-9396(o) 416-459-9396

(fax) 416-408-2372(fax) 416-408-2372

E-mail [email protected] [email protected]

Role of Prosecutor

O Present evidence before hearing officer to satisfy him/her that misconduct has been proven on clear & convincing evidentiary standard

O Ensure that the evidence called is relevant to the particulars of allegation attached to the Notice of Hearing

2

Difference Between Criminal Trials and

P.S.A. Hearings

3

Criminal TrialsO CharterO Technical

issues of admissibility

O Accused may or may not testify

P.S.A. HearingsO Few, if any, pre-

hearing motionsO Few objections

to admissibilityO Subject officer

usually testifies

Preparation for Hearing

O Is disclosure complete?O Interview witnesses – statements –

cross-x -reply O Motions for production of interview

notesO Prepare a ‘Documents Brief’O If complicated, prepare opening

statementO Prepare for cross-examination of

subject officer4

“Zac Attack”

5

Examination-in-chief

O Opportunity for witness to tell story O Leading questions not permittedO Permissible to have witness focus

on specific issueO Documents very useful for guiding

witnessO May cross-examine one’s own

witnessO Can’t speak to witness re:

evidence given6

Judge at OPP hearing claims

'intimidation' Toronto Star – November 11, 2008

7

When Opposing Counsel Cross-examines

O Take verbatim notes; consider why counsel is asking those questions

O Object if opposing counsel misstates prior evidence

O Object if questioning unduly repetitious or irrelevant (s. 15 SPPA), or if cross “sufficient to disclose fully and fairly all matters relevant to the issues..” (ss. 23(2) SPPA)

O Do not speak to your witness until evidence complete

8

Re-Examination

O Have a right to ask your witness questions to clarify issues that arose in cross-examination that could not be reasonably anticipated

O Focus the witness: e.g. “Mr. White asked you a question about the condition of your cat. Is there anything else you would like to add?”

9

Examination-in-chief of Opposing Witness

O Take verbatim NotesO Think about points you want to

accept, ones that are unimportant and ones you must cross-examine on

O Object to leading questionsO Object to opinion questions if witness

not qualified as an expert

10

Cross-Examination – 1O “engine of the truth”? O Paint with wordsO Questions should be tight, eliciting

yes or no answersO If witness gives meandering

answers, ensure your question was answered

O Must cross-examine on evidence of opposing witness inconsistent with material elements of your case

11

Cross-Examination -2“Inconsistencies”

O “Catching a witness in self-contradiction is one of the staples of effective cross-examination” Riley (SCC) Dec. 15/05

O Probe any inconsistencies – are signs of dishonest/unreliable witness;

O What doesn’t fit in their evidence?O Confirm present testimony, block

off avenues of escape, confront with prior inconsistency

O Once found, drive it home12

Toronto Leasing Inquiry“The Office Romance”

13

“An Average Canadian”

14

Schmiergelder“Grease Money”

15

Reply Evidence

O Have a right to call evidence after closing of subject officer’s case on new issues arising out of the latter’s evidence which could not be reasonably anticipated

16

Closing SubmissionsYour chance to drive home theory of your caseStart with an overview, expand it, then summarize“I submit”, not “I think”Weave submissions into exhibits, particularly documents

17

Judgement on Misconduct

18

Penalty Phase* Evidence in penalty phase –

personnel file, media coverage, similar fact, propensity evidence

O Break submissions into thirteen headings; See: Galassi v. Hamilton Police Services

O Remember ss. 85(7) giving hearing officer additional powers

O Check OCPC disciplinary databaseO Seeking dismissal? Was officer

suspended pending hearing?

19

Judgement on Penalty

20

Is It Over????

21

Prosecuting Police Services

Act CasesAdjudicators & Prosecution Course

2014Ian D. ScottIan D. Scott

LawyerLawyer

Suite 1900 Suite 1900

439 University Ave439 University Ave

Toronto Ontario M5G 1Y8Toronto Ontario M5G 1Y8

(o) 416-459-9396(o) 416-459-9396

(fax) 416-408-2372(fax) 416-408-2372

E-mail [email protected] [email protected]