“The subject officer did not participate in an SIU interview and declined to provide a copy of his duty notes, as is his legal right.” — SIU news release announcing that no charges would be laid in the 2014 police shooting death of Jermaine Carby.

Police officers are not required to participate in a Special Investigations Unit probe when they seriously injure or kill an individual.

It’s a fact enshrined in legislation, but two former SIU directors have polar opposite views on the topic.

The “subject officer” — the officer identified as having killed or caused serious injury — should be obligated to participate in an investigation and turn over their notes, said Howard Morton, the SIU’s second permanent director, who served from 1992 to 1995.

“I took the position that the officers had to speak to the SIU… . They’re different from you and I,” he said. “We have the right to remain silent when being investigated by the police, but they should have to give an account because of their position.”

The decision to participate does not necessarily mean that the officer will be charged. For example, the Toronto police officer who shot and killed Andrew Loku in an apartment building hallway last year was interviewed and provided his notes, but was cleared of any criminal wrongdoing.

Morton said he believes the right against self-incrimination in Section 13 of the Canadian Charter of Rights and Freedoms shouldn’t apply to police officers when being investigated by the SIU.

He said it could be argued in court that officers should be exempt under Section 1, which guarantees the Charter’s rights and freedoms “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Initially officers “didn’t put up much of a fight” when Morton had them come in for an interview, he said. But their lawyers eventually began making the argument that their clients had a Charter-protected right to silence.

A regulation adopted by the province in the late 1990s, after Morton’s tenure, clearly outlined that subject officers did not have to participate.

“I think that part of the regulation is really a mistake,” he said.

“They are a public official and somebody is dead … I think that the public is entitled to know exactly what happened, and so how can you have accountability if you don’t know what the officer was thinking, why the officer did what she did?”

Former SIU director Ian Scott, in office from 2008 to 2013, believes the Charter does include police officers under SIU investigation.

“If you compel a subject officer to turn over their notes and give a statement, in my view it’s very likely a court would find them inadmissible because they were compelled by an investigator in a criminal investigation,” he said.

“I think (the current regulation) is reasonable because it’s in accordance with the law, as I understand it, and I don’t think police officers should be in a worse position than civilians in investigations in criminal matters.”

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Scott acknowledged it can sometimes be an obstacle to the investigation when a subject officer does not come in for an interview, adding he was more likely to charge an officer who did not participate. “My view would be: ‘Explain it to the judge,’” he said.

Officers who witnessed the incident under investigation must submit to an interview and provide their notes, according to legislation.

While the subject officer does not have to participate in the SIU probe, he or she can be compelled for an interview and to hand over their notes for the chief of police’s internal investigation, which must take place following the completion of the SIU director’s report.

Those internal investigations can lead to the subject officer facing disciplinary charges. But most police services boards keep those internal reports secret, even though legislation allows the boards to make them public.

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