Halifax Regional Police has filed an official motion to quash subpoenas for Halifax Police Chief Dan Kinsella, and Insp. Derrick Boyd to testify at the Nova Scotia Police Review Board appeal for Kayla Borden against members of the Halifax Regional Police.
Halifax Regional Police lawyer Andrew Gough and Borden’s lawyer, Devin Maxwell, had until last Friday to submit written arguments to the Police Review Board, both for and against having Boyd and Kinsella testify.
The submissions came after Gough, upon requesting the subpoenas be quashed, suggested that a conference call take place between him, Maxwell, and the Nova Scotia Police Review Board “to discuss how such an application may be advanced and adjudicated by the Board in advance of the hearing” — and thus, prevent Kinsella and Boyd from having to publicly testify at the hearing.
“The Chair says that she will consider oral arguments at the outset of the hearing if necessary,” Maxwell told the Examiner last week, “but I am confident that she will issue a decision beforehand based on the written submissions.”
In his eight-page letter Friday to Chair of the Nova Scotia Police Review Board Jean McKenna, Maxwell said the board does not have jurisdictional power to quash subpoenas because such legislation “does not exist.”
“The legislation provides this Board with the authority to summon witnesses, enforce their attendance and compel them to give evidence, but it does not grant the power to quash a subpoena once it has been issued,” he wrote.
“A subpoena can only be quashed by a Justice of the Supreme Court of Nova Scotia.”
Maxwell took issue with the city’s tactics in going about trying to prevent Kinsella and Boyd from testifying. He outlined the following dates from this past fall:
- October 8: In a pre-hearing teleconference, Gough and the responding officers were made aware that Ms. Borden intended to call Kinsella and Boyd as witnesses.
- October 19: Gough emailed Maxwell and asked that the subpoena requests be withdrawn.
- October 21: Maxwell wrote back to Gough to inform him he wouldn’t be withdrawing the request and told Gough “that he should make a Motion to the Board if the HRM had objections.”
- October 29: Dan Kinsella and Derrick Boyd are subpoenaed to testify at the appeal hearing. The subpoenas were issued by Patrick Curran, the Police Complaints Commissioner.
- November 19: Gough, on behalf of the Regional Police, filed a motion to quash subpoenas for Chief Daniel Kinsella and Insp. Derrick Boyd.
“Mr. Gough had every opportunity to oppose the subpoenas to Kinsella and Boyd prior to them being issued,” Maxwell wrote.
“As far as I can tell, it wasn’t until 19 November that Mr. Gough expressed the HRM’s objections … to the Board.”
“He had notice of the Complainant’s intentions more than three weeks ahead of time … The time to object was then. Now that the subpoenas have been issued, he must make a motion in the Supreme Court if he wants to have them quashed,” he argued
At the heart of the matter is whether or not systemic racism and racial bias within the Halifax Regional Police played a role in Borden’s July 2020 late-night arrest at a traffic stop.
“The allegation of racial bias in the entire police department can be argued at the hearing if relevant, such that the conduct of the subject officers (and others present) was driven, or shaped, by the alleged departmental bias,” the Nova Scotia Police Review Board has previously stated.
In his letter last Friday to the Police Review Board, Gough seemed to briefly acknowledge that it is, in fact, the courts who have the power to quash subpoenas for testimony before the Police Review Board — not the Board itself.
He went on, however, to argue at length the criteria the court uses to quash subpoenas. He cited several cases where, in one instance, the court ruled:
“… if the issuer [in this case: Borden and Maxwell] establishes a link of relevance between the proposed witness and the issue in the proceedings, he is entitled prima facie to have a subpoena issued. The burden then shifts to the attacker [in this case: Halifax Regional Police and Gough] to show good reason, such as oppressiveness or abuse of power, why the subpoena should be quashed.”
“This case involves eight police officers who pursued, stopped and arrested Ms. Borden even though she is a different sex, race and description than the suspect they were looking for,” Maxwell argued in his submission.
“She was arrested even though her vehicle was a different colour, make and model than the one driven by the suspect they were looking for. Even though she broke no laws while they were pursuing her,” he wrote.
“Even though her vehicle had a license plate when the vehicle they were looking for did not, they still physically removed her from her car, placed her in handcuffs and arrested her. While the Board has barred Ms. Borden from making a claim against the entire police department, it has allowed her to raise questions of systemic racism insofar as the actions of the respondent officers were directed by departmental biases.”
Maxwell argued that as chief, Kinsella is “eminently qualified to speak about systemic racism and other biases within the HRP.” He said he could also speak to the conduct of the arresting officers in relation to the department’s policies and procedures regarding things like vehicle pursuits, radio communication, use of force, arrest and detainment, record keeping, and dealing with complaints.
He argued that as the designated officer-in-charge of HRP’s Professional Standards Division, Boyd’s testimony would shed light on the department’s policies and procedures, as well as Boyd’s direct knowledge of the facts surrounding Borden’s complaint.
“Both are senior officers of the police department that is responsible for her wrongful arrest. One, Boyd, was directly involved in the investigation and decision making that cleared the responding officers of wrongdoing. The other is the Chief of Police who has, on multiple occasions, spoken on behalf of the entire HRP regarding issues of systemic racism and efforts to combat it.”
In his letter to the Police Review Board, Gough seemed to briefly acknowledge that it is, in fact, the courts who have the power to quash subpoenas for testimony before the Police Review Board, and not the Board itself. He went on, however, to argue at length the criteria that the court uses to quash subpoenas.
From there, Gough quoted several paragraphs from Maxwell’s October letter to him where he quoted past statements from both Kinsella and the Nova Scotia Police Review Board on the subject of race.
“From this, it is obvious that the Complainant is calling Chief Kinsella not to speak to what actually happened when Ms. Borden was stopped, but rather to speak to alleged racial bias in the department,” Gough wrote.
“Contrary to Mr. Maxwell’s submission, the individuals most suited to speak to why Ms. Borden was briefly arrested are those individuals who briefly arrested her. Mr. Maxwell does not even suggest that Chief Kinsella was involved in the arrest or has direct knowledge of what transpired. To the extent he does, such evidence would amount to hearsay and would be limited to a review of whatever reports are on file and have been disclosed. This is not relevant admissible evidence.”
“Regardless of Mr. Maxwell’s persistence, this is not, however, the subject matter of the appeal before this statutory body. The issue is rather whether Csts. Martin and Meisner breached the Code of Conduct such that discipline ought to be imposed. Counsel for the Complainant has obtained subpoenas for virtually every officer that was in any way connected to Ms. Borden’s traffic stop,” Gough wrote.
Both in his October 21 letter to Gough, and in his letter last week to the Police Board, Maxwell cited Chief Kinsella’s November 2019 apology to the Black community for “street check” data after a study by a criminologist showed that Black people in Halifax were six times more like than white people to be stopped, questioned, and/or observed at random by police in Halifax.
“I look forward to working with the community as we continue to build on our relationships and hopefully we’ll earn their trust,” Kinsella said to a room of full of mostly Black people in a community meeting weeks prior to the apology.
“I will pay close personal attention to every incident that is reported to me,” Kinsella said.
Even if Gough is correct and both Kinsella and Boyd’s testimony couldn’t offer any additional insight into Borden’s wrongful arrest, it’s not clear what they feel could be the downside in having them testify if they are, in fact, confident arresting officers did nothing wrong and didn’t exhibit racial bias.
If Kinsella is as dedicated as he says he is to building trust between the department and the Black community, it’s hard to see how he wouldn’t see his and Boyd’s attempts to not testify as counterproductive with respect to that.
“As I have reminded this Board on multiple occasions now, its duty is to the public and its mission is to maintain public confidence,” Maxwell wrote in his letter to the Police Board last week. “By refusing to hear these matters publicly, the Board is complicit in the HRP’s lack of transparency and the ongoing lack of public confidence in policing in Nova Scotia.”
This past summer, one of Kinsella’s own force members, Supt. Dean Simmonds, who is Black, alleged that he too was subject to racial discrimination by police when he and his wife, Liberal MLA Angela Simmonds, had carbine rifles pointed at them at an RCMP traffic stop. Despite leaks of alleged details of that incident by the former acting chief officer of Halifax-district RCMP, Supt. Jeremie Landry, that complaint remains under review.
Maxwell and Borden both say they are pessimistic about how things will unfold and have expressed interest in pursuing the matter further through civil action. Maxwell started a GoFundMe to assist with Borden’s legal expenses.
The appeal hearing into Borden’s complaint against the HRP is set to begin on December 13 and is now expected to hold over into January.
To see the full version of Devin Maxwell’s letter to the Police Review Board, click here.
To see the full version of Andrew Gough’s letter to the Police Review Board, click here.