HRM lawyers botch legal analysis, delay police reform | The Coast Halifax

HRM lawyers botch legal analysis, delay police reform

Turns out, city council can direct policing policy.

Corrections on May 4, After the following article was published, it came to The Coast's attention that the Police Act does indeed explicitly state that a police board "may give advice or direction, in writing, to the chief officer on any matter within the jurisdiction of the board under this Act, but not to other members of the police department." Making the article factually incorrect, but apparently more accurate in its conclusion that the city's lawyers have undermined the board's authority. We apologize for the error while being happy for the supporting evidence. For more, we have a longer explanation with added historical context. On May 5 we further updated the story to clarify Waye Mason's remarks at council. In the initial version of the story we incorrectly wrote that Mason believes council can direct the police. He does not; he believes the board of police commissioners can. And it's also worth noting in that meeting; Mason pushed for the board to have more independence from council.

There’s been a lot of talk about defunding or reforming the police ever since the murder of George Floyd in 2020 and the protests that followed. Here in the HRM, the city’s response to those protests is two sweeping policies designed to reform and modernize police and policing. The first is the public safety strategy. This is a complete look at what police currently do in society, what we expect them to do and how we expect them to police us. The second policy is the integrated policing report, which came to council last week. That report was requested by councillor Tony Mancini when he noticed the city’s two police forces, the RCMP and the Halifax Regional Police, don’t seem to work together.

Strategic planning in the HRM has historically followed the same pattern: The city will identify a major problem, spend a lot of time and money coming up with an implementation plan and then never actually get around to implementing the full plan. In the case of the Integrated Mobility Plan, the issue with implementation is that the city lacks the political will to actually prioritize non-car travel in the way that would be necessary to implement it, so instead we get half-assed bike lanes that aren’t safe or connected to a larger network. And sometimes the city will pass a strategic plan, like the Green Network Plan, without the enforcement bylaws council is legally required to include due to the HRM charter.

Anyway, the glacial pace of police reform in the HRM was a bit of a mystery to policy wonks because, in a straight reading of the Police Act, the Board of Police Commissioners is allowed to give direction HRP chief Dan Kinsella to implement policing policies that are best practices or in line with community values. At last week’s council meeting, councillor and reader of the Police Act, Waye Mason, told city lawyers that he believes council has delegate power to give direction to the chief of police direction via the oversight committee, the Board of Police Commissioners, as per the act. And since the act is the law of the land, he told council that he believes the Board of Police Commissioners is able to direct the HRP. City lawyer John Traves responded by saying the Marshall Inquiry document limits the city’s power to direct the chief of police.

But this 1989 report is not legally binding. It makes recommendations—like the Wortley Report or the Mass Casualty Commission—and elected bodies regularly ignore or delay the implementation of those recommendations. It’s unclear what special powers this 1989 Marshall report has that others do not.

Because if Traves is right, the recommendation “to reduce the possibilities of political interference in policing, we also recommend amendments to the Police Act to make it unlawful for anyone other than a police officer of the same force to issue any policing directive to an officer” would prevent police reform or police integration from happening in this city, ever. And if so, both the public safety strategy and the integrated policing report should be thrown out immediately for being a waste of time and money.

However, the Police Act was amended as recently as 2021, and still does not include that Marshall report recommendation. So it’s unclear what Traves is basing his legal opinion on. The Coast asked for clarification, but the city did not respond in time to meet our newsletter deadline.

If Traves is wrong, then the Board of Police Commissioners has a lot of power it hasn’t been using. And worse, that means this city’s police oversight body has had its authority and legitimacy undermined by HRM’s legal department, even as those same lawyers told the board that there was no need for an independent lawyer.

More damning still is the implication that this inadvertent misdirection was able to blind the city’s police oversight body for over 30 years. The assumption of the board’s powerlessness went without being challenged for three decades, even as societal outcomes of policing have gotten worse.