prosecuting police services act cases adjudicators & prosecution course 2014 ian d. scott lawyer...
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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
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
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Difference Between Criminal Trials and
P.S.A. Hearings
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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”
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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
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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
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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?”
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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
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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
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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”
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“An Average Canadian”
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Schmiergelder“Grease Money”
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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
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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
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Judgement on Misconduct
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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?
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Judgement on Penalty
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Is It Over????
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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