February 3, 2022

How a Bill Fails To Become a Law – The Nova Scotia Police Identity Management Act

A CTV news report from earlier this week revealed that the legislation designed to keep police clothing and gear out of the hands of criminals has not yet been enacted. The Police Identity Management Act was drafted in response to the Nova Scotia mass casualty of April 18-19, 2020, where the killer was disguised as a police officer, and driving a replica RCMP car. I have reviewed the legislation, and have a sense of why it has not yet been enacted.

The normal course of legislation development, or how a bill becomes a law, starts with the legislation going through three readings in the Provincial Legislature (where it is introduced, studied, potentially amended, and then passed in its final form), followed by receiving Royal Assent (meaning it is signed by the Lieutenant Governor). After that, the legislation comes into force either on a date specified in the legislation itself, or else when the Provincial Cabinet proclaims it.

The Police Identity Management Act has gone through all of those steps except for the final one, where Cabinet needs to meet and proclaim it. The legislation received Royal Assent in April, 2021, under the previous Provincial government, but neither that Cabinet nor the current one has yet proclaimed the legislation, and until that happens, it is of no force or effect.

That is not to say there is nothing to stop people who are not police officers from impersonating one. The Nova Scotia Police Act contains a section that prohibits any person or organization from using the uniform, insignia, vehicle markings, or symbols of a police department. Falsely representing yourself to be a peace officer, or using a badge or article of uniform or police equipment is also an offense under s. 130 of the Criminal Code. The maximum sentence for doing so, under the Criminal Code, is five years in jail.

Given the existing prohibitions, one might reasonably question whether any new legislation is necessary. The new legislation is more detailed than the Police Act or Criminal Code provisions, though being more detailed does not necessarily make something superior, and in those details the new legislation has some peculiar features.

The Police Identity Management Act states that no person other than a police officer shall use a police article (that is a crest, badge, emblem, design, or other distinguishing article currently used by a police agency), a police uniform, police vehicle equipment, or police vehicle markings. Individuals would also be prohibited from displaying the word “police” on their clothing or vehicles if it might reasonably mislead someone into believing they are an officer. Exceptions are made for those businesses involved in fabrication or decommissioning of articles or vehicles, as well as museums, dramatic works, or vehicle repair businesses.

All of that is quite reasonable. Where the legislation takes a turn is when it attempts to create a bureaucracy within police agencies dealing with all of these items. Section 11 of the Act states that every police agency “must” have an asset management and disposal policy, a process for tracking issued articles (along with those that are lost, stolen, or damaged), and a person assigned to be responsible for it all. This alone would seem to be a potential cause for the delayed implementation of the legislation. All police forces in Nova Scotia will need to have an asset management and disposal policy in place prior to enactment, which take some not insignificant coordination.

The legislation also contains some complicated and questionable procedural provisions. When a person is discovered to have police articles or vehicles in their possession, they can avoid prosecution entirely by simply forfeiting the articles. Section 14(4) says that “no prosecution” may be commenced if the articles are forfeited. It is not clear why this would be justified, rather than allowing the officer some discretion (as they would normally have) to determine whether a charge is justified. Certainly, one would not imagine someone like the gunman being relieved of prosecution by simply turning over the articles, nor would you see this in other areas of criminal prosecution, such as theft or drug possession.

Related to that, section 17 of the Act says that when a police officer seizes articles, they must report the circumstances to a justice within 10 days, though conversely they do not report anything if the person simply forfeits the articles. Again (if this reporting provision is even to be maintained, which is an open question), it would seem more appropriate to allow some discretion on the part of the officer to make the report even if the articles were forfeited, if the circumstances appeared to be sufficiently serious.

There are also onerous procedures in place for disposal of seized items. Section 16 says that if an individual is not charged within six months, that the officer can apply to the Court for the items to be disposed. This application would require police to serve notice on the person who was in possession of the items, even though the only way such a situation would arise (where six months have passed without the person being charged) is if they have already given up the articles, and have not asked for them back.

In terms of penalties, a person convicted under the new legislation could be liable for a fine up to $10,000 or three months in jail. For a corporation, the maximum fine is $25,000, and a director or owner was determined to be liable could also face the penalties applicable to individuals.

The legislation is sufficiently detailed in its current form such that it could be enacted at any time without the need for any supporting Regulations. I suspect what is really holding things up this the bureaucratic requirement that police agencies have these inventory management systems in place, as required by the legislation, prior to its enactment.

Instead of waiting for that to happen, an alternate approach would be for the current government to remove those sections from the legislation itself, and allow the Minister to add the inventory management provisions as later Regulations, once consultations with the various police agencies have been conducted. Should the government take that route, they may also wish to review and improve the design of the parts of the legislation that allow a perpetrator to avoid all prosecution by simply forfeiting the articles in their possession.

Those changes could take place in the spring sitting of the Legislature, if the government chose that option, and this important legislation could be in place within 2-3 months. In the meantime, we still have the Police Act and Criminal Code prohibitions should anyone be sufficiently foolish and insensitive so as to impersonate a police officer in Nova Scotia in our current climate.

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