It’s time for a bit of a mea culpa. And we need to issue a slight correction to the following story:
There’s a risk when non-lawyers try to explain the law, and that risk is we may not fully understand what we are saying and may incorrectly explain the legal theory behind a legal argument, which is what happened Wednesday. But it requires a bit of a history lesson to explain.
Donald Marshall Jr. was wrongly convicted of murder in 1979. Eight years prior to his conviction, Marshall, an Indigenous man, ran into an acquaintance, 17-year-old Sandy Seale, who was Black. They got into a fight with two white men, one of whom, Roy Ebsary, stabbed and killed Seale. But it was Marshall who was eventually arrested and convicted for Seale’s death.
But due to a series of fortunate (for Marshall) coincidences, it was revealed he was innocent. People wanted to know why he was wrongly convicted, so Nova Scotia did an inquiry into the matter. The inquiry found that, from the first responding detective to the federal minister of justice, Marshall was failed by incompetence and racism. The commission’s first conclusion, 1.1, reads: “That the criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and conviction in 1971 up to - and even beyond - his acquittal by the Supreme Court of Nova Scotia (Appeal Division) in 1983.”
And this mistake also requires a very brief explanation of how legislation works, practically, in Canada. When governments write new laws, they have to (or should) consider how legislation can or will be interpreted by Canada’s judicial system. Often there will be things generated by the government, like the Marshall Inquiry, which gives policymakers and judges the framework by which to interpret the intent of any piece of legislation.
This is where yesterday’s mistake was made. When it comes to policing in this province, what politicians are or are not allowed to do is defined by the Police Act. And that act has, in fact, been updated to reflect the lessons of the Marshall Inquiry, contrary to what I wrote in Wednesday’s article. Section 52 of Nova Scotia’s Police Act currently reads: “On behalf of the board, the board chair or the chair’s delegate 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 and, for greater certainty, no other member of the board shall give advice or direction to a member of the police department.”
This means the Board of Police Commissioners can give orders to Halifax Regional Police chief Dan Kinsella, but no other member of the HRP. But city lawyers do not read the law this way, citing the Marshall Inquiry. But that does not make any sense because the Marshall Inquiry recommendation being cited (54) makes it very clear the board of police commissioners should have the authority to direct the chief of police. It reads: “We recommend that the Police Act be amended to make it clear that it is unlawful for anyone other than a police officer of the same force to issue any order, direction or instruction to any member of a police force relative to his/her duties as a member of the force, except when communicating a decision of the force's lawful governing authority, and that a governing authority shall only issue such order, direction or instruction to the Chief or someone who is acting in his or her stead.”
The point of the recommendation was to make sure politicians weren’t telling individual officers how to do their jobs.— Parody Derek Simon (@DartmouthDerek) May 4, 2023
It wasn’t to prevent Council from providing broad policy direction to the police as a whole through its governing body.
And what that means is that our city council has been held back from police reform because city lawyers have been misreading the Police Act and Marshall Inquiry for years.