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It’s unlikely the Crown will pursue criminal charges against Santina Rao before an investigation into the conduct of Halifax Regional Police officers is complete, says a Dalhousie University law professor.

"I would be surprised if the Crown proceeded with these charges until they had some indication of the conduct of these officers," said Wayne MacKay, an expert in human rights law. "It seems to me that it would be very relevant whether the officers were acting appropriately.”

The charges stem from a controversial Jan. 15 altercation between the 23-year-old black woman and Halifax Regional Police officers at the Walmart store on Mumford Road in Halifax.

Rao objected to being accused of shoplifting while inside the store with her two children. She ended up in a brief physical confrontation with one officer before being slammed to the ground and arrested. The incident sparked criticism from members of the African Nova Scotia community accusing police of discriminating against Rao and using excessive force.

The province’s Serious Incident Response Team is investigating the officers’ handling of Rao, who says she suffered a concussion and broken wrist during her arrest.

MacKay believes the force should have waited on the police watchdog’s investigation to be completed before deciding whether charges are merited. Instead, police swore three charges against Rao at Halifax provincial court Jan. 30: causing a disturbance, assault causing bodily harm to an officer, and resisting arrest.

Two of the arresting officers are identified in court documents. Police allege Rao caused bodily harm to Const. David Clowater and resisted arrest by Clowater and Const. Josh Alarie.

She is scheduled to appear in court Feb. 19.

The Crown would want to see the findings of the SIRT investigation given that Rao’s charges resulted from her interaction with police, said MacKay.

"The charges Ms. Rao is facing are so closely connected with those police officers actions," said MacKay. "It seems to me that it would be hard for anybody, including the Crown, to make a reasonable determination of whether they should go forward with the charges until they had some idea of what the conclusion was as to the conduct of the officers."

The SIRT investigation could take more than two months to complete. The director of the oversight body has three months after the investigation begins to provide a written summary of the investigation available to the public.

HRP responds

A day after the Walmart incident, HRP issued a news release saying it was looking into the “the matter closely.”

The Chronicle Herald asked the force for details of that investigation last week but in an email response HRP spokeswoman Neera Ritcey said that it had been turned over to SIRT.

The Herald also asked whether the force had reviewed the conduct of the officers involved in the arrest, but Ritcey did not address the question.

HRP could have dropped the charges against Rao in the two weeks before they were laid. Ritcey did not provide a specific reason for the gap in time before the charges became official but stated "it is not unusual for some time to pass before information can be sworn to in court."

Five days after Rao's arrest, HRP chief Dan Kinsella told reporters in Halifax that only the Crown had authority to drop the charges at that time. Kinsella said he notified SIRT a day after the Walmart incident on Jan 16. He also said the officers in question continued to work. The Herald was unable to interview the chief last week despite several attempts.

MacKay isn’t convinced that the force conducted a serious review of the officers’ conduct. He said HRP should demonstrate more transparency especially given the force’s history of racial discrimination against black Nova Scotians.

"It’s particularly troubling at a time when the chief of police and the police force as a whole has committed to improving their relationship with the African Nova Scotia community and the policing of the community."

MacKay also said the force has no reason to rush the case because Rao, who has no criminal record, presents no serious risk to the public.

There are also questions about what the SIRT investigation will reveal. Only summaries of investigations are made available to the public. The probe will likely not offer much examination of the general conduct of the officers because SIRT’s mandate is to determine whether officers are guilty of a criminal offence. The investigation summaries don’t contain recommendations that might improve policing.

“There needs to be transparency if we’re really going to establish confidence in not only the African Nova Scotian community but Nova Scotians generally that our police is conducting itself in an appropriate, measured way," said MacKay. "We need to be comforted and reassured that this is the case.”

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