Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie University.
Premier Stephen McNeil says the province of Nova Scotia cannot conduct a public inquiry into the Portapique massacre because it does not have the power to do so under the Constitution. He is wrong.
The Canadian Constitution divides powers between the provincial and federal governments. The Constitution grants the federal government power over criminal law and procedure and over the management of federal agencies. Neither of these federal powers means that the province lacks the authority to conduct an inquiry into the Portapique atrocity and the surrounding circumstances. To the contrary, the power to conduct such an inquiry is granted to the provinces under the Constitution, which gives provinces authority over the administration of justice in the province.
With respect, Mr. McNeil is either hiding behind a misrepresentation of his government’s constitutional powers for political reasons or he is receiving bad legal advice.
First, federal authority over the criminal law does not preclude a provincial inquiry into these horrifying events and the context that produced them. A provincial inquiry that supplants the criminal law and its procedures would be unconstitutional. A province cannot, for example, establish a public inquiry for the purpose of gathering sufficient evidence to lay criminal charges.
However, a provincial inquiry that is mandated to investigate alleged acts of wrongdoing by a police force, or failures in policing generally, for a purpose other than to determine criminal responsibility does not intrude upon the federal government’s criminal-law power. Instead, an inquiry of this sort fits squarely within the constitutional authority of the provinces. This is true whether the police force is a municipal organization (such as the Halifax Regional Police) or a federal organization that the province has contracted to provide policing services (such as the RCMP). This includes the power to investigate specific events where that investigation is necessary to understand policing in the province generally and police conduct in the aggregate. Policing is a matter of provincial constitutional jurisdiction.
There are numerous examples of provincial inquiries of this nature. A recent high-profile example is British Columbia’s Missing Women Commission of Inquiry examining police investigations into Robert Pickton. The most well-known example in Nova Scotia is the Royal Commission on the Donald Marshall Jr. Prosecution. Both of these provincial inquiries included consideration of, and recommendations regarding, the conduct of RCMP officers.
Nor does the second constitutional power at issue here, federal authority over federal organizations, preclude a provincial inquiry.
It is true that the province cannot discipline RCMP officers or scrutinize the internal management and administration of a federal agency like the RCMP. However, provinces absolutely have the power to appoint a commission to inquire into matters that affect the public’s confidence in the administration of justice, including the response of RCMP officers. It is well within Nova Scotia’s authority to conduct a public inquiry that includes an assessment of specific conduct of the RCMP if such conduct is a critical component of understanding the context and events culminating in the April 18-19 massacre and the purpose of the inquiry is to correct systemic problems with law enforcement rather than to discipline individual officers.
My colleagues and I have called for a provincial inquiry with a broad, public-policy basis aimed at understanding the police response to earlier allegations of violence and other criminal activity on the part of the shooter, as well as the contextual factors, both social and legal, that contributed to this atrocity. Nova Scotia is not only constitutionally capable of conducting this type of broad, policy-based inquiry, it is also better positioned than the federal government to do so.
For example, it is the province that should inquire into the formal communication structures in place between policing organizations and domestic-violence workers, social workers and health care providers who treat victims of intimate-partner violence. It is the province that should scrutinize whether adequate resources are in place in rural Nova Scotia to help women escape lethally violent husbands and partners. And it is the province that is best positioned to make recommendations about effective coordination between different policing organizations within the province and between police and other provincial entities.
Nova Scotians and Canadians know that there are lessons to be learned from this massacre. We know that this violence was not an unpredictable, singular event without precedent and with no risk of replication. We expect Nova Scotia to take the lead in ensuring that we are able to better care for each other in the future, rather than hide behind inaccurate representations of the law. The government of Nova Scotia may not have the political will to conduct the public inquiry we have called for, but it most certainly has the constitutional authority.
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