The municipality’s civilian police oversight board has asked for an independent legal opinion on whether it has the authority to review the actions of police at a protest at the former Halifax Memorial Library in August.
Halifax Regional Police evicted people living in parks, arrested protesters, and deployed pepper spray in the street next to the old library on Aug. 18. The next day, Halifax Regional Police Chief Dan Kinsella defended his officers, arguing they’d “responded appropriately” to the crowd of protesters. Kinsella later committed to an internal review of the police response, particularly around officers not wearing their name tags and others wearing thin blue line patches.
Meeting virtually on Monday, two months to the day after that event, the Halifax Board of Police Commissioners debated a motion from Commissioner Harry Critchley aimed at launching an independent civilian review into the police action that day. Critchley’s motion was a response to a petition from the East Coast Prison Justice Society with more than 4,000 signatures calling for such a review. The motion:
That the Board of Police Commissioners prepare a draft of a mandate and terms of reference for an independent civilian review of the oversight, governance, and policy aspects of the HRP’s handling of the protests on August 18, 2021, which mandate and terms of reference will be received and reviewed by the Board at their November meeting.
In the attached justification for the motion, Critchley gave some examples of similar reviews launched by boards across Canada, like those into street checks in Edmonton and Vancouver, and a review into the police response to the 2010 G20 protests in Toronto.
Critchley also provided legislative authority from the Police Act, which in part authorizes the board to provide “the administrative direction, organization and policy required to maintain an adequate, effective and efficient police department.”
The Act also says the board shall “ensure that police services are delivered in a manner consistent with community values, needs and expectations.”
“I really kind of hang my hat a little bit on that section,” Critchley said during Monday’s meeting.
“If there was to be a broad-based review that looked at issues around oversight, governance, planning for that day, accountability, transparency, communication, the policy structure in which things occurred, it would be incumbent on the board to initiate that kind of review.”
Municipal lawyer Marty Ward disagreed, arguing the board doesn’t have the authority to order a review. Besides, he said, there’s already an investigation going on.
“My understanding is that there is already a complaint that’s been filed and is in the process of being processed,” Ward said.
That complaint, according to Ward, was filed by a citizen against the entire police department. That investigation will follow the same process as a complaint filed against an individual officer: the police will investigate themselves and determine if there was wrongdoing. Following that determination, the complainant can appeal the decision to the provincial Police Complaints Commissioner, who then reviews the file to decide whether it should proceed to a hearing of the Police Review Board.
That process is different from what the petition and Critchley asked for, but Ward argued that there shouldn’t be multiple investigations into the same event.
“There would be concern about having parallel processes operating,” Ward said.
The lawyer suggested the board ask for a staff report on whether it has the jurisdiction to ask for the independent review. In the absence of that report, he said his advice is that the motion is out of order.
Critchley disagreed, arguing the independent civilian review would have a different goal from the complaint-driven internal investigation.
“A review that would be initiated by the board wouldn’t be looking to make findings of criminal wrongdoing, civil liability, or disciplinary default,” Critchley said.
“What it would be looking to do would be making recommendations to aid the board to … ensure that we can exercise our authority effectively, to the best of our ability, and within the limits of our jurisdiction, so that meaning not addressing operational matters, to ensure that incidents like this don’t happen in the future.”
Critchley suggested the board may need to seek independent legal advice on the issue, and Coun. Lindell Smith, chair of the board, agreed.
Independent legal advice has been a sticking point for Smith, who before his time as chair requested a report on the board getting its own lawyers due to a potential conflict of interest. The conflict arises from the city’s lawyers representing both the board and the police department. In the staff report in response to Smith’s request, one municipal lawyer acknowledged the potential for a perceived conflict and recommended the board seek independent advice when it was needed.
Smith made an amendment to Critchley’s motion, asking for both a staff report and an independent legal opinion on the board’s jurisdiction to order the review.
The board eventually passed this motion:
That the Board of Police Commissioners request an independent legal opinion and staff report on the jurisdictional authority for the commission to create a terms of reference for an independent civilian review of the oversight, governance, and policy aspects of the handling of protests on August 18, 2021, and the following motion be deferred until the opinion is received: That the Board of Police Commissioners prepare a draft of a mandate and terms of reference for an independent civilian review of the oversight, governance, and policy aspects of the HRP’s handling of the protests on August 18, 2021, which mandate and terms of reference will be received and reviewed by the Board at a future meeting.
There’s no timeline on the return of the independent and staff opinions.