Gateway Gazette

The Use of Proffered or Conditional Statements in Investigations into Police Conduct

An issue has arisen with respect to ASIRT’s position on what are often called “proffered” or “conditional” statements in investigations into police conduct. ASIRT would like to take this opportunity to publicly share its position and the rationale behind it.

On Apr. 5, 2015, the Alberta Serious Incident Response Team (ASIRT) was directed to conduct a review of the Calgary Police Service (CPS) investigation into the circumstances surrounding the loss of, amongst other items, a Colt C8- A2 carbine assault rifle. The goal of an ASIRT review is to identify whether the investigating agency has completed the investigation in a manner consistent with the level of investigative excellence that follows ASIRT’s objective – to maintain public confidence in policing. ASIRT’s reporting letter to the Calgary Chief of Police, the Calgary Police Commission, and the Director of Law Enforcement was obtained and made public as a result of a Freedom of Information and Protection of Privacy Act (FOIP) request. As it is now within the public domain, and with the support of the CPS, the letter can be viewed on the ASIRT website.

In the letter, ASIRT makes reference to what is called a proffered or conditional statement from counsel for a subject officer. These are not, in fact, statements provided by the subject officer. They are letters authored by counsel for a subject officer that purport to provide a summary of what the subject officer’s version of the events might be if he or she was to provide a statement or testify in court. They are drafted from the third person perspective by counsel. These submissions come with attached trust conditions that ensure that the contents are protected or privileged and not admissible against a subject officer for any purpose. Additionally, they are often accompanied by a lengthy legal argument based upon the provided version of events to dissuade the investigative agency or Crown from charging the officer and/or pursuing a prosecution. Effectively, it allows a subject officer to put forward a version of the events without being accountable for that version. Whether an investigative agency should accept proffered statements in a criminal investigation is a policy decision.

ASIRT seeks to obtain the best evidence when conducting investigations. This includes interviews resulting in voluntary, admissible statements from subject officers in cases where they are prepared to provide such a statement. Proffered or conditional statements do not represent the best, or even admissible, evidence.

When a person provides a proper statement to investigators during a criminal investigation, it becomes evidence that can be used for the purposes of an investigation and any subsequent prosecution, both for and against that person. They are potentially accountable for what they have said. The same cannot be said for proffered statements. They have no evidentiary value in a criminal investigation.

Proffered statements are almost exclusively provided and/or accepted in criminal investigations into police conduct, and have been a long-standing concern of ASIRT. The acceptance and consideration of these statements on behalf of police officers could be perceived as an unfair advantage in the criminal investigative process. The citizen that becomes the subject of a criminal investigation rarely receives the same benefit.

For these reasons, ASIRT’s long-standing policy has been to refuse to accept proffered statements in relation to any ASIRT investigation. Both the Crown and Alberta police services have been aware of ASIRT’s position on the issue for some time.

Investigations should be concerned with evidence and decisions should be made on the basis of evidence. No subject officer is required to provide a statement as he or she enjoys the same constitutionally protected right to remain silent that every Canadian is entitled to. The decision to remain silent cannot and should not be used as evidence against the subject officer; however, it also does not constitute positive evidence for the officer. The alternative is to provide a voluntary statement with the knowledge that the statement provided constitutes evidence that might be used in a criminal investigation to either incriminate or exonerate the subject officer, the same as it would for any other subject of an investigation.

In any review, ASIRT may make recommendations about certain investigative practices or policy, where those practices or policy have impacted the specific investigation under review. These are only recommendations encouraging best investigative practices designed to obtain the best evidence in any given investigation, and meet the objective of enhancing confidence in policing. It is within the discretion of the investigating agency to decide whether to accept the recommendations.

Alberta is fortunate to have the benefit of highly trained and professional police services in this province, committed to community safety, the enforcement of the law, and public service with honour in an ever-changing environment. ASIRT has observed this commitment in every police service in this province, including CPS, and will continue to work with these police services as we continue to develop consistent standards and best practices that will assist in maintaining or enhancing public confidence in policing.

ASIRT’s mandate is to effectively, independently, and objectively investigate incidents involving Alberta’s police that have resulted in serious injury or death to any person, as well as serious or sensitive allegations of police misconduct.

Source Alberta Serious Incident Response Team

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