How Halifax council can (and must) regulate police use of force

As has already been reported, at today’s Halifax Regional Municipality (HRM) Budget Committee meeting, every councillor with the exception of Steve Adams voted to approve an amendment to the budget that cancelled the purchase of an armoured vehicle for the Halifax Regional Police (HRP) and instead reallocate the funding.

Specifically, after an hour in camera receiving legal advice, councillors voted to redirect $53,500 to city’s office of diversity and inclusion to make up for a planned cut this year; $36,000 to its public safety office; and the remaining $300,000 for initiatives intended to fight anti-Black racism in the city. 

It was an emotional meeting for many, with Shawn Cleary, who introduced the motion, tearing up at one point, and David Hendsbee quoting Frederick Douglass at length.

Lisa Blackburn committed to holding the police more accountable going forward by making her approval of future budgets contingent on the HRP providing evidence to demonstrate that they are making progress on the Wortley Report recommendations — something, I should add, El Jones recommended in a presentation to the Board of Police Commissioners meeting on January 20.

If you recall, Jones’s proposal was not met with such a warm response, with Tony Mancini asking her in response “whether she had anything nice to say about the police,” before proceeding to completely derail her question and answer period.

Understanding the symbolically charged nature of their decision, Matt Whitman (a real, adult man who had to be reminded not too long ago that it is inappropriate to use the slur “negroes”) even rescinded his seconding the motion, so as to allow Lindell Smith to do so in his stead.

Amidst all the hubbub, it would have been easy enough to miss an off-handed reference by Hendsbee to the Royal Commission on the Donald Marshall, Jr., Prosecution, and specifically its recommendations relating to the necessity of ensuring the independence of police forces in Nova Scotia from political inference. The Marshall Inquiry found widespread collusion amongst government officials at all levels of the justice system, with the result being that “the criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983.” 

In order to prevent abuses of power like this from happening again, the Inquiry recommended that amendments be made to the governing legislation for policing in Nova Scotia, the Police Act, which would make it clear that it is unlawful for anyone other than a police officer of the same force to issue any policing directive to an officer. 

When a modernized Police Act was implemented in 1989, this recommendation was carried forward in a number of ways in the new legislation. One of these was implemented in 2006, according to which, under section 55(1)(e), the Board of Police Commissioners (the civilian oversight body for the HRP) is barred from exercising jurisdiction regarding “the actual day-to-day direction of the police department.” This makes sense, as it prevents the Board from ordering the HRP to arrest someone or drop an investigation, for example. 

With that history lesson out of the way, let’s bring thing back to Hendsbee. With all of the councillors vying with one another to see who could most eloquently express their opposition to anti-Black racism, Hendsbee wanted to know whether it might be a fair compromise to give the HRP the money for their tank, but put in a place a policy restricting its possible uses (think: more search and rescue, less mowing down protestors). However, he was worried that requiring the HRP to put in place such a policy would conflict with the prohibition mentioned above in section 55(1)(e). 

City lawyer John Traves clarified that tying police funds for the armoured vehicle to a requirement that a policy be implemented regarding its use would not be contrary to the Police Act. In fact, Traves advised that doing so would actually be consistent with two other provisions in the Act — namely, sections 55(3)(d) and (f), according to which the Board has duties to “ensure that police services are delivered in a manner consistent with community values, needs and expectations” and to “recommend policies, administrative and organizational direction for the effective management of the police department.”

Thankfully, Hendsbee’s proposal was ultimately voted down, but its implications for police accountability in Nova Scotia going forward cannot be understated. 

Historically, the Board of Police Commissioners has adopted the view that section 55(1)(e) means that they have no power whatsoever to tell the HRP what to do. So, for example, throughout much of the debate around the use of street checks, going back at least as far as the Kirk Johnson case, many members of the African Nova Scotia community tried to raised concerns with their city councillors about this practice. However, the response was always that their hands were tied. According to Jones, the Board in particular “assured us they had no authority over [HRP] operations, and all they could do was send a letter to the province.”

City lawyer John Traves has now gone on the record saying that this is not the case. This development is really important because, in effect, it means for the last 20 or more years the Board has been abdicating its duties under the Police Act. It also means that, going forward, advocates and other members of the public can push the board, and city council more generally, to require that police funds be tied to other important policy reforms.

As Martha Paynter has argued, this could allow for much needed changes to the HRP’s use of force policies, so as to prohibit (or at least largely restrict) the use of force against people who are pregnant, or to require that officers take all reasonable steps to avoid arresting mothers in front of their children.

It could also serve as an avenue for amending the HRP’s policies regarding the use of tasers, so as to bring them into conformity with the Nova Scotia Guidelines on Conducted Energy Weapons, and, more specifically, to bar their use in responding to mental health crises — as in the incident in March where a 28-year-old man in Dartmouth who was engaged in self-harm ultimately died after an officer tasered him “in an attempt to stop him” after he became “uncooperative.”

Finally, it could be a way to change the HRP’s policy around the use restraints so as to bring an end to the use of “spit hoods,” a device which ultimately led to the tragic death of Corey Rogers in the HRP drunk tank in 2016 and for which there is no evidence base to support their use as a means of preventing disease transmission. 

These suggestions are just the tip of the iceberg in terms of possible reforms the police board could — and, in fact, must, as per the language of the Police Act — push for on behalf of the citizens of Halifax in order to “ensure that police services are delivered in a manner consistent with community values, needs and expectations.”

The question now is, once the warm and fuzzies dissipate from the council’s decision to cancel the tank purchase, the Board will have the moral leadership to do so, or if instead they should, in the words of Jones, “step aside.”

Harry Critchley is a law student at Dalhousie University, the Vice-Chair of the East Coast Prison Justice Society, and the Chair of the Advocacy Committee for the Elizabeth Fry Society of Mainland Nova Scotia.

Update: A previous version of this article misidentified the city lawyer speaking to council on Tuesday, and misstated the amount of time council spent in camera.

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