Monday was the first day in a Nova Scotia Police Review Board appeal hearing into a complaint by Kayla Borden against members of the Halifax Regional Police
In his opening arguments, Borden’s lawyer, Devin Maxwell, said it was never his client’s wish to limit the scope of her complaint to just constables Scott Martin and Jason Meisner, who were two of the half-dozen officers present when she was wrongfully arrested in July 2020.
Andrew Gough, the lawyer representing Halifax Regional Police, and Nasha Nijhawan, the lawyer representing Martin and Meisner, made no opening arguments.
Borden was called as the first witness. Borden testified she left her cousin’s house in Bedford in the early hours of July 28, 2020 and headed home to Dartmouth. She said that the road was empty and that at one point she pulled over to let an HRP vehicle with its emergency lights on pass before continuing on her route.
After reaching the Burnside area of Dartmouth, Borden was pulled over, put in handcuffs, and placed under arrest by Cst. Martin. She testified that he didn’t read her her rights.
She said then when she asked why she was under arrest, Martin told her, “You’ll see in a minute.”
Borden said she was afraid and didn’t know what was happening and became terrified when nearly half a dozen more police officers arrived. She said she felt “upset” and “humiliated” when she was put in handcuffs.
“I have no clue why I’m in this predicament,” she recalled.
Borden said one of the officers told her that she didn’t have her lights on, which she said she immediately denied. She said that her car had automatic daytimes lights and that if her headlights were turned off it would also turn off the lights on her console.
After being questioned about the make and model of her car, the police told her they were looking for a white man in a different model and colour car than the one she was driving.
Police then removed the handcuffs. Though she was told she was no longer under arrest, she was told not to leave and was told to provide her licence and registration information to be recorded in the incident report.
Though a new directive issued this month by the provincial Justice Department mandates that police have the legal standard of “reasonable suspicion” in order to record data on someone they suspect is guilty of, or about to commit a crime, the legal standard in 2020 was that of whether or not someone was guilty of “suspicious activity,” leaving it largely up to an individual officer’s personal discretion. Nevertheless, the police didn’t order Borden to produce her information that night until after they had already determined that she was completely innocent.
A police officer then apologized, wished her a good night, and the police took off without providing their names or the incident number.
Borden said she felt “a lot of anger,” and was “sad” and “humiliated” the rest of the way driving home.
Borden said that after missing a night’s sleep, she also missed a day’s work that morning in order to file a complaint. She said filing the complaint was a “runaround.”
When Borden called HRP headquarters in Halifax, she was told they had no record of her arrest and asked her if she had an incident report number. She said she was then told to call the Dartmouth office of the HRP to inquire about the incident report number. When she did, she was told to call back to the Halifax office.
Further frustrated, and running on no sleep, Borden said she and a friend decided to go to the Gottingen Street headquarters in Halifax, where she was finally able to get the complaint process started.
She later received a call from the police and was given the incident number and the name of Cst. Stewart McCulley, who spotted and pursued the initial vehicle before being ordered by a ranking officer to end the high-speed pursuit for public safety reasons. McCulley was the initial sole-respondent to Borden’s complaint.
Borden later had a meeting with her lawyer and Sgt. Jonathan Jefferies, who was assigned with investigating the complaint. “He asked light questions,” she testified.
Questioning by Nijhawan
Borden was then questioned by Nasha Nijhawan, the lawyer for Martin and Meisner.
Nijhawan handed out to Maxwell, Gough, the board panel, and Borden copies of a photo of a car the same make and model as the one Borden was driving; a satellite image of the intersection where she was arrested, and a map encompassing her entire route home that night. They determined there were differences in the bumpers of Borden’s car and the one in the photo. Nijhawan then asked Borden questions in relation to the satellite image and the map in terms of where she was arrested, where she was coming from, and where she was headed.
Borden said she specifically remembered turning her headlights on before leaving her cousin’s house.
She said she spoke to a total of three officers that night: the arresting officer, the officer who questioned her and claimed she had been driving with her lights off, and the officer who instructed her not to leave and provide her licence and registration after the handcuffs were removed.
Borden couldn’t remember how many officers stuck around throughout the course of the entire incident. She said she didn’t have the wherewithal to ask any of the officers for their names.
Borden said she thinks the police didn’t know that she was Black when they first pulled her over.
Nijhawan asked Borden if her opinion about the stop being racially motivated would change “even if the officers had no idea they were stopping a Black person.” Borden said no, that it wouldn’t.
“Help me understand why,” Nijhawan asked.
“Because we continue to get stopped every day from officers, even just riding a bike,” Borden said. “I have a cousin who drove his bike home from work and he didn’t have a helmet on, he got beat up by the police just because he was driving home without a helmet. So I do believe that I did get pulled over because I was Black.”
The hearing continues today and is scheduled through the week.