A potential conflict of interest calling into question the independence of Halifax’s board of police commissioners has led one member of the board to seek an independent opinion on the issue — but he’s being told he’ll first need to ask the opinion of those who could be in conflict.
Coun. Lindell Smith had a motion on the agenda at the last two meetings of the board, on July 9 and July 20, seeking “an independent opinion to determine if the Board of Police Commissioners should or shouldn’t have its own legal counsel separate from HRM and HRP.”
“The Board’s independent status is achieved by ensuring accountability for oversight of the police services and their employees,” Smith wrote in the reasoning for the report.
“To do this, the board needs to be able to receive unbiased legal opinions and advice when requesting reviews of policy’s and procedures. If HRP and HRM are providing the legal opinion for the board, this could be perceived as a conflict when seeking legal advice. In order for the Board to ensure independence when providing oversight of the operation of policing in Halifax the board must also feel confident that the advice that is being received is unbiased as possible.”
Smith wants the independent opinion to cover whether the board is permitted to have its own lawyer under the Police Act, whether the current arrangement “could present as a conflict of interest,” and how the board could receive legal advice in the future.
But despite being on the agenda twice, the motion hasn’t come up for debate.
The independence of the board
Halifax’s board of police commissioners is established and mostly appointed by council, but is its own legal entity “established as an independent authority pursuant” to the provincial Police Act — one that “may contract and may sue and be sued in its own name.”
Though it meets at city hall and uses the city’s clerks, it’s not a committee of council like those handling audit and finance or transportation. It acts independently on council’s behalf to provide civilian governance of policing and oversee “the administrative direction, organization and policy required to maintain an adequate, effective and efficient police department.” It also acts as an advisory board for the Halifax-district RCMP.
“As a statutory governance body, the Board must be and be seen to be … independent of the police service administration and management, political affiliation and interest groups,” says the board’s policy manual.
The policy manual says the board has a “unique relationship with the municipal council and it exists, in part, to insulate the police services from the political decision making process. The Police Board is responsible for ensuring that the police provide effective and efficient services. The municipal council provides the police department with an annual budget to achieve these objectives.”
“The Board ensures the independence of the operation of policing in Halifax, but HRP is also functionally a department of the municipality,” the manual says.
Halifax regional council, Halifax Regional Municipality, and Halifax Regional Police, then, are all effectively the same under the law. The board of police commissioners is separate.
But they all share the same lawyers.
As an example, Halifax Regional Municipality lawyer Katherine Salsman appeared at a hearing of the Police Review Board to represent Halifax Regional Police on July 15. Salsman also submitted a memorandum to the board’s July 20 meeting on its memorandum of understanding with the municipality, the police and the RCMP.
There’s no conflict there, but what if the board wanted to create a policy that the police or the city or council, for whatever reason, didn’t like?
“We need to have opinions from folks who know the Police Act and the Municipal Act inside and out, and who also aren’t afraid to challenge what this might do on HRM’s side,” Smith said in an interview.
“Right now we’re seeing that our lawyers, in most cases, their best interest is to make sure that nothing goes against the grain for HRM, for HRP and RCMP.”
Potential for conflict threatens perception of independence
Wayne MacKay, professor emeritus at Dalhousie University’s Schulich School of Law, said in an interview with the Halifax Examiner that Smith is raising a “very good question.”
“Whether or not something is actually a conflict of interest is a very, sort of factual, specific kind of thing, but I think at a minimum it seems to me that there is a potential for conflict of interest in that it would not be uncommon for the city council and the police commission to potentially be on opposite sides of an issue,” MacKay said.
“And to have one lawyer representing both sides in a dispute is normally seen as a conflict of interest.”
Though there are exceptions when both sides agree, MacKay gave the example of an employer and a union sharing the same lawyer, or a husband and wife going through divorce proceedings using the same lawyer.
“It’s not quite as clear as those … but I think the potential for conflict would be there in some situations,” he said.
Setting aside the murky and case-specific idea of a conflict of interest, MacKay said using the same lawyers “may raise a question in a reasonable person’s mind as to how independent the police commission actually is.”
“By having the same legal counsel, I think that does raise a certain apprehension of potential bias, and maybe a compromise of their independence in some circumstances,” he said.
Providing the board with its own legal counsel wouldn’t be prohibitively expensive, either, MacKay said.
“It seems to me it wouldn’t be a big problem at a practical level or a big problem economically to in fact have different counsel representing the police commission,” he said.
“The benefits of getting greater confidence and respect for the independence of the police commission might be worth that price.”
Smith’s motion deferred indefinitely
On July 9, the board got hung up on a motion defining the idea of defunding the police and Smith was asked and agreed to defer his motion to the next meeting due to time constraints. At the next meeting, on July 20, the board got hung up again, and Smith was again asked to defer his motion for the same reason. But he was also told it needed to be deferred because board chair Natalie Borden said he needed a staff report first — one the board hasn’t actually asked for.
“Before we can debate the motion about getting an independent legal opinion, we do require the staff report and that work is underway. So nothing for us to really vote on from a motion perspective,” Borden said during the meeting. “We get the staff report, and once we have that, we do come back and vote on the motion about whether we go forward with independent legal counsel.”
Smith asked why the board needs a staff report first.
“The rules say any motion that’s brought forward by a member of council, or a member of the board in this case, requires a staff report and recommendation before it can be voted on, and it’s deemed deferred until such time,” municipal lawyer Marty Ward replied.
Those rules to which Ward refers apply to council and its committees, but also the board, via its policy manual.
Smith asked what the staff report will outline, given the board hasn’t even asked for one.
“This hasn’t passed, we haven’t had a discussion,” Smith said. “Is the staff report outlining whether we should do that or not?”
“All it does is really inform the board of all the factors that are at play,” Ward said.
In the interest of moving the meeting along, Smith agreed to discuss it at the next one, but Ward was sure to let him know it’s deferred till his report is done, not the next meeting. Smith said he’d be following up with Ward after the meeting.
“I will take one for the team and let this be deferred until next meeting, but I want to make sure that we have a discussion offline for sure,” he said.
Ward or another city lawyer, then, is writing a report to the board about whether city lawyers are in a conflict of interest when they advise both the board and the city.
Smith didn’t ask for the report, but he has a good idea what it will say.
“My opinion is they’re going to tell us that they’re not in a conflict of interest and they’ve been providing us legal counsel for X number of years and since then, we haven’t had any issues or concerns regarding that and we recommend you don’t seek to have your own legal counsel,” he said in an interview.
“I feel that the report is pretty much going to say, ‘No, you don’t need it,’ which is why I didn’t want to go that route. Even having our staff … write a report goes against what we’re trying to achieve with that.”
As Smith pointed out during the meeting, the board has asked for an outside legal opinion before — without a staff report.
In May 2019 following the release of Scot Wortley’s report showing Black people are six times more likely than white people to be street checked, the board asked the Nova Scotia Human Rights Commission to provide an opinion on the legality of street checks.
The Nova Scotia Human Rights Commission hired research lawyer Jennifer Taylor and former Nova Scotia Chief Justice Michael MacDonald — now tasked with leading the review into the mass shooting — to write that opinion, which concluded that street checks are illegal.
The next meeting of the board is scheduled for Aug. 18.
Update: This article has been updated to reflect that there were two authors of the independent legal opinion on street checks.
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