Nova Scotia’s Police Review Board has dismissed Kayla Borden’s complaint against two Halifax Regional Police officers and declared that race “could not have been and was not a factor” in the case.
Borden, who is Black, was driving home late at night in July 2020 when Halifax Regional Police officers pursued her, pulled her over, and arrested her. They were looking for a driver involved in a chase with police, in a car fitting a different description. They eventually let Borden go, and she filed a complaint the next day.
The police dismissed Borden’s complaint — narrowed to two officers, constables Jason Meisner and Scott Martin — following an internal investigation. She appealed that decision to the Police Review Board.
A three-member panel of the board — Jean McKenna, John Withrow, and Kim Ross — heard Borden’s case in December 2021, November 2022, and January 2023.
Officers pursued the wrong car
During the hearing, Const. Stuart McCulley testified he was in a high-speed chase with the driver of a dark Pontiac on the Bedford Highway the night Borden was arrested. He said of the driver, on his radio, that “he had no lights on, single driver and he had a baseball hat on, is all I could tell, with a temp permit.” McCulley’s superior called off the pursuit, citing public safety.
Meisner testified that after McCulley had radioed about the pursuit, he was at the Bedford police station when he saw a dark-coloured sedan pass. He pursued the vehicle, Borden’s, which he said didn’t have its lights on. He didn’t turn on his lights to initiate a traffic stop, worried the driver would take off.
Borden drove outbound on the Bedford Highway, turned onto Dartmouth Road, and then onto the Magazine Hill, at which point Meisner testified she turned on her lights.
Martin was a passenger in another police vehicle, with Const. Andrew Nicholson driving. With Meisner still in pursuit, Martin and Nicholson pulled out of an intersection in Burnside to block Borden in at Meisner’s request. Martin was the arresting officer, and pulled Borden from her vehicle.
The officers testified they realized their mistake when McCulley showed up and saw Borden had a licence plate, unlike the driver who sped off. They continued to detain Borden, threatening to ticket her for not having lights on, but let her go after gathering her information.
Decision sides with cops
Borden argued she shouldn’t have been arrested because she was clearly not the driver they were looking for. She argued the police stopped her because she was Black, that she should’ve been advised of her right to a lawyer, and that when the detention continued, that was an illegal street check.
In a decision dated May 12, the board dismissed Borden’s complaint. It found the officers were justified in arresting Borden.
“The Board is satisfied that Cst. Meisner had the subjective grounds to see the Borden car as the subject, fleeing vehicle. On the facts of this case, those grounds are easily objectively verifiable, and the circumstances leading up to the arrest support the legality of the arrest,” the board wrote.
The board was especially dismissive of any role that race may have played in the incident. It argued the officers had no way of knowing Borden’s race, and that knowing her race wouldn’t have changed their actions.
“As noted in the above review, race could not have been and was not a factor at any point in the Borden incident,” the board wrote.
“No officer involved had any knowledge of her racial origins until Cst. Martin became aware that she was Black, when he arrived at the side of her car. He had already made the decision to arrest and in fact, had a duty to do so in the circumstances. Cst. McCulley had two seconds, travelling at a dangerously high speed, on a dark night, to observe the driver of the actual fleeing vehicle; he did not discern race; at best, he thought that that driver might be male.”
‘Not an iota of evidence’ of racism, says board
The board even derided Borden for believing she was a victim of racial profiling, noting her testimony that nothing could change her mind.
“This position is untenable, particularly in the face of not only officer testimony, but the radio transmissions throughout. This is not a case of their word against hers,” the board wrote.
“There is not an iota of evidence that conscious or unconscious racial bias/systemic racism had anything to do with the pursuit and arrest of July 28, 2020.”
The board pointed to Halifax Regional Police Chief Dan Kinsella’s testimony, and apology to Borden, as proof there’s no issue with systemic racism within HRP.
“At the outset of his testimony, Chief Kinsella offered an unsolicited apology to Ms. Borden, and expressed empathy for what she had experienced. The Board is satisfied that this was completely sincere,” it wrote.
“He also acknowledged the existence of racial bias in policing as with any other field of endeavour. He detailed steps that HRP is taking to train its officer, to recognize, and avoid, the intrusion of bias in its work.”
Board accepts police version of all events
Throughout the decision, the board accepted the police officers’ version of events and dismissed Borden’s, relying on a combination of their testimony and radio transmission transcripts. For instance, the officers claimed one reason they pursued Borden was her lights were turned off for the start of the pursuit. She said they were on the whole time.
“Ms. Borden offers no explanation for this discrepancy. This is not a case of police officers testifying one set of facts, and a witness/complainant another. In this case, the radio transmissions, generated in the course of the event, provide clear evidence that until Ms. Borden approached the Bedford bypass, her headlights and taillights were off,” the board wrote.
“The Board is satisfied that Ms. Borden’s taillights and headlights only came on as she was headed up Dartmouth Road towards Magazine Hill. Yet, even in the face of this evidence, Ms. Borden continued to maintain her position.”
The board accepted McCulley’s testimony that when he said “he” over the radio, he wasn’t identifying the driver involved in the pursuit as male.
“It is common in current vernacular to ascribe the male gender to an unknown driver, such as ‘did you see what that guy did?'” the board wrote.
As for Borden’s argument that she should’ve been advised of her right to a lawyer, the board agreed with police that there wasn’t time to advise her. Once arrest shifted to detention, the board argued there was no need for a lawyer. And that detention wasn’t an illegal street check, the board wrote, because Borden’s lights were out and she was being stopped for that.
“The collection of information also falls within the second exception to the ban; her information, and ability therefore to contact her, could assist in any further investigation into the identity of the correct subject vehicle (That individual was never located),” the board wrote.
“It would be astonishing if the officers had not created a complete record of an event involving such a pursuit and arrest, involving multiple officers and vehicles. A failure to do so would almost certainly create a suspicion of police ‘cover up’ of an incident.”
Borden’s lawyer considering judicial review
In a news release Tuesday afternoon, lawyer Asaf Rashid said Borden may seek a judicial review of the decision.
“The decision failed to meaningfully address the subject of anti-Black racism and racial profiling. People in Nova Scotia concerned about police racism should be deeply troubled about the decision-making of this Board,” Rashid said.
“The Board seemed angry in their decision, in my assessment, that Ms. Borden dared to raise the subject of racism. Based on this attitude, there should be a review of whether this Review Board is competent in addressing the subject of racism. There should be consideration of overhauling the Review Board.”
Rashid noted other issues with the decision, including that it will set a date to hear arguments for costs to be paid to the officers: “At the request of counsel for the officers, we will hear argument on costs to follow.”
“This can create a chill effect for others who wish to complain about racism going forward,” Rashid said.
Officers don’t pay their legal costs, either; their defence is covered by public money.
The board ended its decision with an unanswered question about whether Borden should’ve been advised of her right to a lawyer.
“I am concerned about the lack of application of proper legal standards in the decision and that the decision does not even appear to be complete,” Rashid said.
“The public should be concerned that this is how review of police complaints is being handled.”
The board also spelled Rashid’s name incorrectly.
“I find that insulting, as a racialized person with an uncommon name,” Rashid said.
Why am I not surprised by this. Has not the HRM Chief of Police admitted that there is a racism problem in his police force. Why is anyone arrested for ‘driving without headlights on’? This is the stuff of 1960s deep south USA.
You can’t make this stuff up. Halifax, the 1960s Birmingham north.