One of the issues that is going to dominate at least the early portions of the Mass Casualty Commission is the performance and decisions of the police officers and supervisors that were involved. Among the issues that have been identified is the myriad jurisdictional questions involved when criminal incidents reach a level where backup is required, which seem to exacerbate operational communication challenges.
The Constitution of Canada says that policing is a Provincial responsibility. The area around Portapique is policed by the federally established and operated RCMP. Two of the closest backup units to the local RCMP detachment are the municipal police forces in Truro and Amherst. The killer had property in Dartmouth, and so the Halifax Regional Police became involved. The RCMP called other RCMP units before the municipal forces, even though they had to come from further away.
Who polices Nova Scotia? The Police Act is a provincial statue, which dictates how policing is supposed to be structured. The Provincial Minister of Justice is in charge, with wide ranging powers to direct police conduct and training, to deal with complaints against individual officers, and to review any aspect of policing. In a practical sense, however, it is not clear how much use is made of this authority.
One of the specific powers granted is to make arrangements with the RCMP to police portions of Nova Scotia, and in fact most of Nova Scotia is policed by the RCMP. When the contract was renewed most recently, in 2012, the indications were that 60% of Nova Scotia’s population, covering 94% of our land mass, is policed by the RCMP.
Exceptions are Halifax, Cape Breton Regional Municipality, Truro, Amherst, New Glasgow, Stellarton, Westville, Annapolis, Bridgewater, and Kentville, which have their own police forces (Halifax has a mixed model with some RCMP presence). Another complication is that nine municipalities in NS have individual contracts with the federal Department of Public Safety to have the RCMP police their municipalities. In all situations, there are financial arrangements in place when backup is required from another police entity for any reason.
Section 28 of the Police Act says that the Provincial Minister of Justice may appoint the Chief of the Nova Scotia Police. It is unclear whether this actually happens, or indeed who might be the Chief of the Nova Scotia Police, if there is one. A new Commanding Officer of the RCMP was appointed in 2018, but that was only announced by the RCMP, not the Nova Scotia Department of Justice. We understand that Commanding Officer Chief Bergerman retired, and was replaced just before the MCC hearings were to begin last fall, but again this has not been announced by the Department of Justice, and she is still listed by the RCMP website as being the Commanding Officer for Nova Scotia.
So, although policing is a provincial responsibility, it is the federal and municipal governments who have effective operational control over policing in Nova Scotia.
The RCMP has a contract that the Province says extends until 2032, but which can be terminated early with two years’ notice. I would be very curious to see whether there are other termination clauses in that contract, provisions relating to performance rather than simply the two years’ notice. Most employment or ongoing long term contractual arrangements would have some such clause, and it may even be an implied term. Either way, it is likely that the RCMP has a great deal at stake in the Mass Casualty Commission. If their performance is revealed to have been sufficiently bad, there may be major contractual implications.
The Minister of Justice also has the power to order a review of any aspect of policing under s. 7 of the Police Act. Under the previous government, there was an indication from the Minister that something of a comprehensive review of policing had been ordered, but no details or documentation to support such an order has been made public, and when the new government took over, it appeared that little had been done to design any kind of review process.
In my view, the MCC is in part a prelude to a formal review of policing in Nova Scotia. In the course of the Commission testimony, we should discover whether any policing errors were individual judgement calls, or whether they reveal systemic issues with respect to how Nova Scotia is policed. If there are problems identified that can be traced back to Nova Scotia’s multi-jurisdictional policing model, then the Minister should initiate (or restart) a formal review.
