The city’s Board of Police Commissioners voted to break the law Monday by passing the Halifax Regional Police budget. This is not just the opinion of your outside observer. The two lawyers on the board, Harry Critchley and Gavin Giles, both pointed out that the board, in passing this budget to council, would be breaking the law.
The law in question is the provincial Police Act, also known as An Act Respecting Policing in Nova Scotia. Section 53 of the Act deals with police department budgets: In this case, section 53, clause 1, says the Halifax board of commissioners has to make HRP chief Dan Kinsella prepare a budget, and then (clause 3) the board has to submit the budget to council. But in between those two clauses of section 53 is another, which reads: “(2) The board shall ensure that the budget prepared pursuant to subsection (1) is consistent with those matters referred to in subsection 55(3).” Which the board did not do Monday.
(Getting deeper into the legislative labyrinth, section 55 clause 3 of the law covering police boards puts a variety of obligations on the boards. Subsection (c) requires the commissioners to “ensure that community needs and values are reflected in policing priorities,” while (i) a board has to “ensure the department is managed by the chief officer according to best practices and operates effectively and efficiently.” We’ll get back to best practices very soon.)
During Monday’s debate about the HRP budget, commissioner Giles started his five minutes by saying, “I respectfully have the view that insufficient budgetary information has been shared with me, to permit me to exercise and execute my role as it is defined pursuant to the provisions of Section 53 (1) and (2) of the Police Act and Section 55 (3) of the Police Act. All of us know the provisions of those sections require introspection on our part, as regards any aspect of our approval of such budget, as we may be prepared to recommend to council.”
He pointed out that the Board of Police Commissioners was not given enough information to “ensure the department is managed by the chief officer according to best practices and operates effectively and efficiently.” And obviously, the board has not ensured Kinsella is managing his department according to best practices. For example, the HRP has a mobile mental health team, but the RCMP told the board in the last non-budget board meeting that having cops do mental health calls is not at all a best practice. How is the HRP having a mobile mental health team a best practice? No one can say; the board never even had that debate.
“...It seems to me to be rather an end-run around a proper budgeting process, especially one which statutorily entails respect for the public...”tweet this
“In my respectful submission, that is not a budget process, at least not consistent with any kind of budgeting process I have ever had anything to do with,” continued Giles. “And as a matter of fact, not to be unduly crass, it seems to me to be rather an end-run around a proper budgeting process, especially one which statutorily entails respect for the public, respect for the public purse, and respect for the advancement of the community generally, and the regularization of law and order through law enforcement within the community.” He concluded his statement by saying, “I haven't had time to look at what's been presented, let alone study it in detail. And thus, I feel that what I'm being asked to do is an abrogation of my responsibilities and the abrogation of the responsibilities of anyone being asked to do the same thing.”
Critchley’s argument was more or less the same. He, too, highlighted all of the ways in which the board was breaking the law. He concluded by saying as much: “If the board is not making decisions based on evidence, and if the public isn't being provided with the evidence to support their consultation, then unfortunately, we're not in compliance with the Police Act.”
The response from our elected officials after being confronted with their failures of oversight was an underwhelming procedural shrug. “I'm not sure how much more information we can get,” said councillor and police commissioner Lisa Blackburn. But that lack of information was the whole point that commissioners Critchley and Giles were making. The board does not have enough information and can’t get more information. To pass along this budget without getting the information they need to make an informed decision means the board is not in compliance with the Police Act.
So what can be done?
In Canada, our legislation is extremely important. Our whole society is predicated on the fact that the words we write down on paper as laws will be upheld. It’s the contract we all abide by. When we screw up this contract, the state has given itself the power to punish us by using the legal system, as enforced by the police. The people who are supposed to keep us safe from the abuse of power by the state or the police are the members of the Board of Police Commissioners, as they duly exercise their legal obligations.
If they did not duly exercise their legal obligations, what can be done? Normally, elected officials will tell their constituents that the only recourse is voting them out, but that’s not entirely true. If a city government is in contravention of an Act, it is possible to sue the city. However, this requires a lot of time and money. A lawyer who practices administrative law (the type of practice required to sue the city) costs a lot of money per hour.
Speaking of hours, suing the city would take a long time. And there are not a lot of lawyers in the HRM who practice administrative law. In fact, suing the city would be so time- and labour-intensive it would require a community group or organization with a vested interest in making the city better, and that has the capacity to pursue a court case over the years it may take to get resolved. Unfortunately, organizations with the time, capacity and resources are in vanishingly short supply.
Here at The Coast, we do journalism because we believe we need to hold power to account. But when journalism alone isn’t enough to do that, at what point does the importance of holding power to account supersede our role as journalists?
As a community—whether that’s a community of Haligonians, or a community of Coast readers and creators—we have to decide how important holding power to account actually is to us. Is it a belief we actually value? Or is it a value to be discarded when it gets too hard to follow?
Speaking for The Coast, we have decided that power needs to be held to account. And since we are in a unique position to connect and mobilize a larger community of readers and Haligonians, we’ve decided to do everything we can to seek accountability. We’ve decided to try to sue the city.
More details will follow in the coming weeks because we will need help, a lot of help. But for now, know that our intentions are real, and righteous. The Coast will be suing the city because it broke the law, and we all deserve leaders who actually do their jobs. Even if they only do so when legally compelled.