On Thursday morning, just before Halifax Regional Police Chief Dan Kinsella was expected to testify at the appeal hearing into a complaint against constables Scott Martin and Jason Meisner, word got out the hearing would be delayed until the new year. The Examiner reported on the three days of testimony. Here’s what we heard.
After her lawyer Devin Maxwell presented opening arguments Monday morning, Kayla Borden testified about the night she said she was followed by police from Bedford to Burnside. Borden said she was pulled over, handcuffed, and arrested in the presence of seven Halifax Regional Police officers.
Borden and Maxwell said it was never Borden’s intention to limit her complaint to specific police officers. They said it was Sgt. Jonathan Jefferies, who initially investigated the complaint, who decided unilaterally to limit to the complaint to constables Scott Martin and Jason Meisner, the arresting officers in the incident report.
The Nova Scotia Police Review Board previously upheld that decision.
Borden’s complaint was eventually dismissed by Insp. Derrick Boyd. Andrew Gough, the lawyer for the HRP, requested a subpoena for Boyd be quashed, preventing him from having to testify. The Police Review Board granted that request.
When the hearing broke for lunch on Monday, several dozen people showed up to a rally in support of Borden. NDP MLA Suzy Hansen, ANSDPAD Coalition director Vanessa Fells, Nova Scotia Music Award winner Keonté Beals, and members of a First Nations advocacy group, Atomic Phoenix First Nations, were all in attendance.
Borden and her mother both spoke at the rally. Other speakers included Dr. El Jones, author Angela Bowden, African Nova Scotian community advocates Lynn Jones, Raymond Sheppard, and Kate McDonald, Darius Mirshahi who organized and emceed the rally, and Borden’s lawyer, Devin Maxwell, who encouraged people to attend the hearing, and to document and spread the word of the proceedings.
After lunch, the hearing continued with testimony from Cst Stewart McCulley who spotted and chased the initial vehicle that had no headlights on and no license plate.
McCulley said the car was a Black Pontiac, which was driven by a white man in a Black baseball cap. He said he didn’t mention the race or specify the gender of the driver over the radio, describing them simply as “he.”
Borden’s vehicle, a grey Dodge Avenger, did not match the description of the Black Pontiac that McCulley pursued. Audio from the radio dispatch confirmed McCulley described the vehicle to the other officers as both “black” and “dark coloured.”
McCulley said he arrived on the scene shortly after Borden was arrested. He said he saw it was the wrong car and radioed the information to the arresting officers. He said he then quickly turned his car around and drove away without speaking to anyone face to face.
Police lawyer Andrew Gough objected when Maxwell asked McCulley if he believed there was “any racial bias or institutional racism within the Halifax Police.”
“I don’t see that being any way relevant to this particular incident,” Gough said.
Board chair Jean McKenna and Maxwell discussed the merits of the question for more than 11 minutes.
Maxwell said, “I guess what I was trying to get at was … if he says to me he doesn’t believe there is [systemic racism within HRP], then to me that’s evidence of systemic racism [in of itself].”
Gough openly and immediately laughed at the notion to the dismay of several observers in the gallery.
Constables Andrew Nicholson and Jeffrey Pulsifer testified on Tuesday.
Nicholson is partners with Scott Martin, who is named in the complaint. The pair were stationed in Dartmouth and were at the police station in Burnside the night of Borden’s arrest. Nicholson said he and Martin drove to the intersection of Seapoint Road and Windmill Road when they heard Borden’s car was headed that way from the Magazine Hill. He said they parked on Seapoint Road facing Windmill for a brief period until Borden pulled up to the intersection from Windmill Road.
Nicholson said Borden’s car was driving the speed limit. He said that as she pulled up, the light turned red and she stopped which surprised him because he expected the driver to proceed. He said he turned into the intersection, facing Borden’s car with his emergency lights on.
Though the officers following Borden said over the radio they were keeping a distance so the driver wouldn’t see them and try to flee, Nicholson said that Jason Meisner’s police car a white unmarked SUV from the K9 Unit, was only about two car lengths behind Borden when she pulled up. He said he believed Meisner would have been able to tell the car had a license plate, unlike the car that been reported.
Nicholson said he, Martin, and Meisner all immediately exited their vehicles and approached Borden’s. He said he went straight to Borden’s passenger side while Martin approached the driver side and placed Borden under arrest and in handcuffs. Neither he, Martin, or Meisner read Borden her rights.
He said he could tell that Borden was “a Black individual” as he approached the car and could tell she was a woman as he got close up. He said he assumed Martin would have been able to tell right away as well.
Nicholson said while he was at the passenger side door, he noticed Cst. Pulsifer appear to his left within seconds. He said he’s not sure who said it, but that after Borden was already in handcuffs, another officer verbally acknowledged that Borden’s car did, in fact, have a license plate.
He said Borden was compliant the whole time and offered no resistance. Given the same information available to him that night, Nicholson said he wouldn’t have done anything differently.
Jeffery Pulsifer said Borden was in handcuffs for about a minute before they realized what Meisner eventually wrote as an “epic failure” in the official police log.
After citing the Canadian Charter of Rights and Freedoms, Maxwell asked Pulsifer why he felt it wouldn’t have been “reasonably prudent” to read Borden her rights and tell her why she was under arrest between the time was told she was under arrest and the point she was told she was no longer under arrest, but ordered to stay put and provide her information.
Pulsifer continued to re-play the sequence of events from the time Borden was pulled over, placed in handcuffs, and then released.
“You keep telling me it’s reasonably prudent, but you can’t tell me why,” Maxwell said.
After an objection from Nasha Nijhawan, the lawyer representing Martin and Meiner, Jean McKenna, chair of the Police Review Board, said, “That’s his view of what’s reasonably prudent. At the end of the day, the Board can say, ‘Well, he should have instantly advised her, or he should have [waited].’”
Weeks prior to the hearing, in expressing frustration toward the Police Review Board and its processes, Maxwell cited a complaint made by a former Halifax Regional Police officer, Maurice Carvery, who is Black and who said he too was racially profiled by members of the Halifax Regional Police.
Cst. Andrew Joudrey was one of the officers named in Carvery’s complaint, which was dismissed when Carvery didn’t show up to the hearing. Coincidentally, Joudrey was also one of the officers who helped follow Borden’s car the night she was arrested. He testified on Wednesday.
Joudrey said he was on his lunch break when he heard over the radio about Borden’s car being spotted and mistaken for the Black Pontiac. When he saw police cars that were following her pass him, he said he ended his break and joined in. He said he had no reason to assume his colleagues were following the wrong car.
He said when he arrived on the scene of the stop, he was close enough to see Borden who was already in handcuffs. He said he was close enough to be able to tell that Borden’s car did, in fact, have a license plate, but he couldn’t recall if he thought to take notice. He said several officers were already with Borden and that he, like McCulley, also took off without speaking to anyone face to face.
Joudrey’s testimony was delayed by about 20 minutes due to an in-camera meeting between the board, Maxwell, Gough, Nijhawan, Borden and her support person, Angela Bowden, and Martin and Meisner and one of their support persons.
Testimony ended early Wednesday after Joudrey’s testimony. The next witness was unavailable to testify.
Thursday’s sudden adjournment
Weeks prior to the hearing, Andrew Gough, the lawyer for the Halifax Regional Police, requested that a subpoena for Halifax Police Chief Dan Kinsella be quashed along with another subpoena for Insp. Derrick Boyd. The Board agreed to quash Boyd’s subpoena, but it upheld the subpoena for Kinsella.
Kinsella was expected to testify first on Thursday.
Thursday morning on the Facebook event page for Monday’s rally outside the hearing, Darius Mirshahi wrote: “Heads up to everyone who was planning to attend Kayla’s hearing today to act as observers. The proceedings are adjourned until January.”
“The chief of police was set to testify today. So when it resumes there will likely be a mobilization on the day he does end up testifying.”
Given Thursday’s adjournment, Kinsella is now expected to testify when the hearing resumes in January. Constables Anil Rana, Sym Dewar, and Tanya Lambert, the other officers present when Borden was arrested, are also expected to testify.
Kayla Borden’s lawyer Devin Maxwell has been working on her case pro bono. Maxwell and Borden previously expressed frustration with the Police Review Board, as well as an interest in taking the matter to civil court.
Maxwell has since launched a GoFundMe for Borden to help with various legal expenses.