1. Prosecuting Police Services Act Cases Adjudicators & Prosecution Course 2014 Ian D. Scott Lawyer Suite 1900 439 University Ave Toronto Ontario M5G 1Y8 (o) 416-459-9396 (fax) 416-408-2372 E-mail ian@iandscott.ca 1

2. 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

3. Difference Between Criminal Trials and P.S.A. Hearings 3 Criminal Trials O Charter O Technical issues of admissibility O Accused may or may not testify P.S.A. Hearings O Few, if any, pre-hearing motions O Few objections to admissibility O Subject officer usually testifies

4. Preparation for Hearing O Is disclosure complete? O Interview witnesses – statements –cross-x - reply O Motions for production of interview notes O Prepare a ‘Documents Brief’ O If complicated, prepare opening statement O Prepare for cross-examination of subject officer 4

5. “Zac Attack” 5

6. Examination-in-chief O Opportunity for witness to tell story O Leading questions not permitted O Permissible to have witness focus on specific issue O Documents very useful for guiding witness O May cross-examine one’s own witness O Can’t speak to witness re: evidence given 6

7. Judge at OPP hearing claims 'intimidation' Toronto Star – November 11, 2008 7

8. 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

9. 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

10. Examination-in-chief of Opposing Witness O Take verbatim Notes O Think about points you want to accept, ones that are unimportant and ones you must cross-examine on O Object to leading questions O Object to opinion questions if witness not qualified as an expert 10

11. Cross-Examination – 1 O “engine of the truth”? O Paint with words O Questions should be tight, eliciting yes or no answers O 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

12. 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 home 12

13. Toronto Leasing Inquiry “The Office Romance” 13

14. “An Average Canadian” 14

15. Schmiergelder “Grease Money” 15

16. 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

17. Closing Submissions  Your chance to drive home theory of your case  Start with an overview, expand it, then summarize  “I submit”, not “I think”  Weave submissions into exhibits, particularly documents 17

18. Judgement on Misconduct 18

19. 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 database O Seeking dismissal? Was officer suspended pending hearing? 19

20. Judgement on Penalty 20

21. Is It Over???? 21

22. Prosecuting Police Services Act Cases Adjudicators & Prosecution Course 2014 Ian D. Scott Lawyer Suite 1900 439 University Ave Toronto Ontario M5G 1Y8 (o) 416-459-9396 (fax) 416-408-2372 E-mail ian@iandscott.ca 22