When a non-lawyer watches the legal system in action, a vague sense of injustice lingers in the aftermath. It’s often hard to nail down exactly what’s causing the malaise. There’s always a hint—a certain je ne sais quoi d’injustice. And, unsurprisingly, the same malaise that permeates courtroom proceedings also crept its way into the recent Nova Scotia Police Review Board hearing for Halifax Regional Police constable Nicole Green.
Even though the review board hearing is somewhat sheltered from some of the big pitfalls of injustice in our legal system, like jury trials, there are some spillover effects. For example, Black people are about five times more likely to be in the prison system than their white counterparts. And even though a lot of Nova Scotians smoke weed, back when it was illegal Black people were more than five times more likely to be arrested for it than their white counterparts. And Black people in Nova Scotia have a history of being racistly stopped by police more frequently than their white counterparts. And constable Green did testify that when she’s interacting with people, they’re not usually at their best.
So is it possible the injustice is that Green and her Black taser victim were set up by their shared cultural history to expect hostility and mistrust from each other in a way that the review board couldn’t adequately address? That’s a pretty big injustice, but it’s obvious and it’s one we’ve been conditioned to expect. The unease comes from something that’s not quite in focus.
Was it when Green’s lawyer, Brian Bailey, interrupted proceedings to take issue with calling tazering violence? Although any average person would call tazering an act of violence, to Bailey’s thinking when a cop does it it’s called “use of force.” Because, apparently, if Nicole Green were off the clock and tazed someone, it would be illegal behaviour involving physical force intended to hurt, damage or kill someone or something. When she does the same thing in uniform as a cop, however, it’s legal behaviour involving physical force intended to hurt, damage or kill someone or something. But that sounds bad, and cops are a force for good (or so they claim) and so cop violence, AKA state-backed violence, requires a euphemism. And euphemisms allow cops to shirk responsibility for their violence. Which the Halifax Regional Police absolutely did in this case. Is that it? That feels pretty serious, but maybe like a tangential issue with police more generally?
Maybe the real injustice in this process is time and what happens over time to someone with power and someone without.
When she tazed the man we’re calling Fred in Dec 2019, Nicole Green made the sunshine list of high-earning city employees with a salary of $113,855.62. She’s no longer on the sunshine list, which can be inferred as losing at least one pay grade, but she’s still employed. The taxpayer likely pays for her lawyer. She has not really suffered any objective negative consequences for tazing a man on Quinpool road. She may face consequences in the future, as she was found to be in the wrong in the HRP’s initial internal investigation. But even then, those initial consequences were eight hours of docked pay and training designed to make her a better cop. The review board is tasked with considering whether it should overturn the HRP investigation’s ruling, not whether the force’s original punishments were too lenient. No matter how this plays out, Green will likely be okay.
The man she tazed, as a reminder, is and was innocent. He is a victim. And it’s impossible to know for sure what the negative consequences were for him for being tazed. But what we do know is his window for getting compensated for damages— AKA justice—is already mostly shut, even though the review board is still deliberating. Thanks to legislation passed by Stephen McNeil’s Liberals in 2015, the New Limitation of Actions Act, Fred would have needed to file something against Green or the city either two years from the date of the incident, or two years from filing his complaint against Green with HRP. Both of those deadlines have passed.
There is a bit of an exception in the limitations act, and if Fred gets a good lawyer, they might be able to argue it on his behalf. Essentially because his case would be against the city, and because the city’s process to determine whether or not Green is in the wrong has taken more than two years, his lawyer could argue that Fred was waiting for the decision before proceeding. They could also argue that the two-year limitation is to ensure the quality of evidence hasn’t eroded over time, and since Fred’s case has been reviewed twice in the intervening years it can be easily proved the evidence is still accurate and good. Even so, the waiting is a gamble.
The Limitation Act gives the city’s lawyers an excellent argument to claim the window to file a civil suit is closed. They can argue he knew the extent of damage caused on the day he filed his complaint against Green. He didn’t file a civil suit on that day, and now the two-year window is closed. Too bad, so sad.
No matter how you slice it, the outcome of a civil case for this matter is a crapshoot that could go either way. There’s no way to know which way the case will break until it makes it to a judge. And there’s not a lot of case law to inform a judge’s decision one way or the other. If a civil litigation lawyer thinks the case is strong enough, they may take the case even though it’s passed the two-year cut-off, knowing they’ll get paid in the settlement. If not, the victim’s on his own.
Procedurally, legally and individually, both the review board and the civil processes are fair. But when those two processes combine in this manner, they work to ensure justice for the police, and years of injustice for the victim of police violence.
This is just part of the pattern of our legal system that recreates time and again. In an effort to be fair, it routinely produces injustices. That pattern is what causes the malaise, the distrust.
And a pattern reinforcing distrust in our legal system can have dire consequences.