Devin Maxwell’s faith in the Nova Scotia Police Review Board is shaken.
The lawyer representing Kayla Borden in her complaint against Halifax Regional Police said he and his client are reviewing their options following a decision from the board last week.
In that decision, dated Aug. 9, board chair Jean McKenna, with members Kimberley Ross and Stephen Johnson, ruled that only two of the officers of the nine involved in Borden’s late-night arrest in Dartmouth last summer will face the board in a hearing.
Maxwell had argued that the complaint should be broadened to include the rest of the officers involved, along with the entire police force. A lawyer for the police, Katherine Salsman, argued it’s up to the police to decide whether they should be investigating themselves for “structural, institutional or systemic issues.”
In what the police chalk up to a case of mistaken identity, Kayla Borden was pulled over and arrested for no reason on July 28, 2020 in Dartmouth on her way home from a visit with her cousin in Bedford. El Jones first reported on the case for the Halifax Examiner later that day. Borden filed a complaint, and as the Examiner reported in October, the police didn’t make it easy.
Halifax Regional Police investigated themselves and found no wrongdoing in the case, and Borden and her lawyer, Devin Maxwell, appealed the decision. It’s now before the Police Review Board, and [in early June] the Examiner reported on Maxwell’s efforts to broaden the scope of the complaint and the eventual hearing into the case.
In short, Maxwell argues the sergeant who investigated Borden’s complaint, Sgt. Jonathan Jefferies, unilaterally decided she was only complaining about two of the officers involved — constables Scott Martin and Jason Meisner, the arresting officers. Inspector Derrick Boyd’s summary of Jefferies’ investigation indicates there were seven other officers involved — constables Andrew Nicholson, Anil Rana, Sym Dewar, Andrew Joudrey, Jeffrey Pulsifer, Tanya Lambert, and Stuart McCulley — but police didn’t consider their behaviour in the investigation, just the two arresting officers.
In his preliminary submission to the board, Maxwell wrote, in part:
Kayla’s complaint is against the Halifax Regional Police, in its entirety. It implicates the officer that arrested her. It implicates the officers who participated in her arrest and stood by and watched it happen. It implicates the staff that made it difficult for her to file a complaint and refused to provide her (or me) with any information concerning the incident. It implicates the officer that conducted the investigation. It implicates the officer who wrote the decision dismissing the complaint. And, finally, it implicates a police force that continues to deny that it has a racism problem and has ignored a litany of recommendations aimed at addressing issues around race.
All parties in the case made preliminary submissions to the board in June to define the scope of the hearing, and in the decision released last week, the board decided to stick with the status quo.
The board wrote that its “powers are broad enough to allow the Board to hear full and complete evidence surrounding an incident in question, including evidence as to the conduct of all officers involved, whether subject officers or witness officers.” It can also address “policies, procedures, and practices of a department, if it appears that those matters may underlie the event complained of” and it can address minor procedural defects. But it can’t, the board wrote, “make a finding of disciplinary default against an officer who is not the named subject of the complaint.”
In Ms. Borden’s complaint, to add further officers to the review at this stage would not constitute a minor procedural defect. Both Ms. Borden and the officers are allowed procedural fairness, and to now add individuals who were witness officers as subject officers would deny them access to all of the earlier steps in the statutory process.
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. If a connection is established, through evidence lead at the hearing, the powers of the Board are broad enough to make comment pursuant to s. 79(1)(c). However, despite counsel for the Disciplinary Authority not opposing adding the HRP as a party, the Board does not have jurisdiction to proceed on that basis, nor is it necessary in the circumstances.
We emphasize that our role is to deal with Ms. Borden’s complaint, as set out in Form 5, and with the conduct of the named officers. We understand that she has an issue with the eventual determination by Sgt. Jefferies as to what officers should have been named, and as noted, we can address that process if it becomes relevant to Ms. Borden’s complaint. But we emphasize that this hearing is about Ms. Borden’s complaint. That is our statutory mandate.
In an interview Monday, Maxwell said he still needs to discuss the decision with Borden, but he’s not sure the board is willing to address the substance of Borden’s complaint.
“Her intention and her purpose with this complaint didn’t simply deal with her being arrested that particular night. It had to do with a police force that for whatever reason, continues to arrest Black Nova Scotians at exorbitantly disproportionate rates,” Maxwell said.
“That’s what she was hoping to do with this complaint, and now it appears that the appeal board is telling us that that is outside of their purview, that it’s outside of their jurisdiction and that they’re not prepared to do that, that they’re only prepared to deal with the actions of two police officers.”
Maxwell said he sympathizes with Maurice Carvery, a Black former police officer pulled over for having an expired plate, and his representative, Rubin Coward. They described the Police Review Board in correspondence as “nefarious, deceitful, a kangaroo court, corrupt, and going out of the way to hide the truth.” Carvery and Coward didn’t show for their hearing in front of the board, and as a result, the case against Halifax Regional Police constables Brent Woodworth and Andrew Joudrey was dismissed.
“They’ve essentially abandoned the complaint because, much like I feel right now, they don’t feel, or he doesn’t feel like this board is capable of dealing with with the issue,” Maxwell said.
He also pointed to the case of Adam LeRue, a Black man arrested for being in a park after dark, where the board ruled that although one of the two officers involved, Const. Kenneth O’Brien, had breached the code of conduct for cops, race wasn’t a factor.
“Black people are being arrested at a very high rate, and they’re not willing to look at the big picture,” he said of the board. “They’re only willing to look at the specifics of a man who was stopped because he’s parked at the Dingle, or a police officer who’s stopped for having an expired license.”
The board, Maxwell argues, sees these as mistakes by officers when they should be looking at policing generally.
“What I read from their decision is that for whatever reason they feel that that’s their role, that that’s their only jurisdiction that’s their only authority is to deal with police misconduct, it’s not to deal with the greater picture,” he said.
“The conversation I’m going to have with Kayla is, where does somebody go? Where does somebody like Kayla go to have that conversation, or to have that discussion or have that inquiry?”
With the scope determined, the decision says the clerk for the review board “will now contact parties to set hearing dates.”