Kayla Borden’s lawyer says this is what systemic racism looks like

Kayla Borden wasn’t just complaining about the two officers who handcuffed her last summer. She was complaining about the whole force.

But her lawyer is concerned, as the complaint heads to the Nova Scotia Police Review Board, that the way Halifax Regional Police investigated her complaint will limit the scope of the hearing into the incident.

As El Jones first reported for the Halifax Examiner last July, Borden was pulled over and arrested on July 28, 2020 in Dartmouth on her way home from a visit with her cousin in Bedford. As Jones reported later that day:

When [Borden] reached the intersection of Cuddy Lane and Windmill Road at around 1am, she paused to wait for a police wagon which had pulled up diagonally alongside her car.

The lights [on the wagon] were not on, which I thought was weird, so I waited about 10 seconds, and then about 5-6 more cop cars came out of nowhere and swarmed me in the intersection from all directions.

Two white officers approached me. I couldn’t see if they had their guns out or not. They yelled, “Put your hands on the steering wheel.” I was so scared wondering what was going on. After I put my hands on the wheel, the same cop immediately started yelling at me to get out of the car.

I had my window rolled down, and he grabbed open my car door. He pulled me out of the car and told me “You’re under arrest.” They put me in handcuffs. I was asking, “For what?” He told me, “We will see in a minute.”

Borden, an African Nova Scotia woman, says that all the officers were white, and only one officer was a woman. She says another officer approached her and began questioning her.

He asked, “Do you know why we pulled you over?” I said that I didn’t. He said, “You didn’t have your lights on for a bit.” I told him that I did have my lights on, and then he said that I didn’t pull over when he put on his lights. I told him that I did pull over, five minutes before when a cop car came up behind me on the Bedford Highway.

Then he asked me what kind of car I drive, and after I responded, he said “We were on a high speed chase with a white guy in a Toyota.” I drive a Dodge Avenger. And, obviously, I am not a white man.

Borden says the officer who arrested her then said, “You are un-under arrest.” However, even though she was told she was no longer being detained, another officer still took her licence, registration, and insurance information while she was still surrounded by three police cars. She was then instructed to move her car to the side of the road, and after waiting for her belongings to be returned, the officer with her identification told her, “Sorry, have a good night.”

The next day, Borden went to the police station to file a complaint. The police gave her limited information, and as the Examiner reported in October, it started a frustrating process.

Police investigate police, find no wrongdoing

In December, the police finished their investigation. In the decision, HRP Inspector Derrick Boyd writes that Sgt. Jonathan Jefferies investigated the complaint against two officers — constables Scott Martin and Jason Meisner — and found neither of them acted improperly.

The decision lists seven other officers involved — constables Andrew Nicholson, Anil Rana, Sym Dewar, Andrew Joudrey, Jeffrey Pulsifer, Tanya Lambert, Stuart McCulley — but police didn’t consider their behaviour in the investigation, just the two arresting officers.

McCulley was the officer who first saw the speeding vehicle police were allegedly chasing when they stopped Borden. The decision said he “observed a dark colored sedan, with no plate just a temporary permit in the window, driving on the Bedford Highway with its lights off and travelling at a high rate of speed.”

After trying to stop the vehicle, McCulley got in a chase and “observed the driver to be a lone occupant of the vehicle, a white male and wearing a base ball cap.” The decision said he radioed into dispatch to say the driver was wearing a ball cap. He stopped the pursuit when it got too dangerous.

Officers in the Bedford area were then on the lookout for a dark sedan with no plate and no lights on, and that’s when Meisner told the investigator he saw Borden driving with no lights on. (Borden said her lights were on at all times.)

Meisner told dispatch he thought he’d spotted the vehicle and started following, and updated at some point that the driver’s lights had been turned on. Eventually, Meisner asked other officers to stop the vehicle. Nicholson pulled in front of Borden, and Martin went up to the vehicle to make the arrest.

When McCulley got to the scene, he told officers Borden wasn’t the driver he was chasing, and the officers let her go.

“The officers involved in this complaint believed that Ms Borden could possibly be the suspect that was evading police earlier in the evening. The original vehicle was similar to the vehicle Ms Borden was driving, and her lights were off. Cst Martin did have reasonable and probable grounds to make the arrest for flight,” Boyd wrote in the decision.

“As soon as it was determined that Ms Borden was not the suspect (approximately 1 minute later), she was released, and officers apologized to her.

“Therefore, the allegations are not sustained.”

The police report disputed Borden’s version of events, saying the officers claimed they never said anything about a white man driving a Toyota, and that dispatch only ever referred to a driver with a ball cap. The police admit, though, that dispatch referred to the driver as “he.”

Borden appeals police decision

Unsatisfied with that outcome, Borden and her lawyer, Devin Maxwell, appealed the decision to the Nova Scotia Police Review Board.

There was a teleconference in March to set dates, and Maxwell raised some preliminary issues around the scope of the review. The board scheduled an in-person hearing to deal with those issues in May, but it was cancelled due to the third wave of COVID-19.

Last week, Maxwell made a written written submission instead, arguing the scope of the hearing should consider more than just the conduct of Martin and Meisner.

“Kayla made her complaint in order to shed light on what happened to her on 28 July and to, hopefully, stop the same thing from happening to someone else,” Maxwell wrote. “She was terrified by the actions of the police officers and it’s no secret that there is a long history of racial bias within the HRP.”

Maxwell lists the cases of Kirk Johnson, Santina Rao, Demario Chambers, Adam LeRue, Gyasi Symonds and the Wortley report into street checks as evidence.

“Although it is certainly that, Kayla’s complaint is not simply about a couple of police officers who failed at their jobs, and who acted cruelly and discourteously in the course of making an arrest. It’s about an entire police department with a long history of racial bias that seems unable, or unwilling, to make the changes necessary to fix the problem. It’s about stopping the racial profiling and victimization of Black Nova Scotians,” Maxwell wrote.

But the police decided unilaterally that Borden’s complaint was only about the conduct of Martin and Meisner. Maxwell continued:

Kayla’s complaint is against all of the officers that were present on the morning she was arrested: Constables Andrew Nicholson, Anil Rana, Sym Dewar, Andrew Joudrey, Jeffrey Pulsifer, Tanya Lambert, Scott Martin, and Jason Meisner. They all participated in her arrest and any one of them could have stopped it at any time. Note that the only reason she knows the names of these officers is because they are provided by Insp. Boyd in his decision.

Kayla also complains about Insp. Boyd, as well as about Cst. Stuart McCulley and Sgt. Jonathan Jefferies.

Kayla never indicated that her complaint was against Csts. Martin and Meisner. In fact, the FORM 5 – Public Complaint that she filed the following day mentions only Cst. McCulley, which was the only name the staff at the police station was willing to provide her.

…

While we disagree with Insp. Boyd and Sgt. Jefferies’ conclusions regarding the racial biases, negligence, use of force, and lack of civility of Csts. Martin and Meisner, this complaint is about so much more. In addition to the individual conduct of those officers, Kayla complains about the systemic racism that resulted in her being unnecessarily stopped and manhandled from her vehicle by eight police officers – all of whom are responsible for her wrongful arrest.

Systemic racism is also responsible for the way that Kayla was treated after she was stopped. It underlies the way she was treated when she tried to make a complaint and the manner in which her complaint was investigated by Sgt. Jefferies and judged by Insp. Boyd.

The fact that these officers did not drag Kayla from her car while hurling racial epithets does not excuse, or even mitigate, the fact that another young Black Nova Scotian was stopped and arrested for no good reason by a police department that continues to maintain that it has no issues of racial bias.

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.

Maxwell argues such a complaint, broadly applied against the entire police force, is permitted under the provincial Police Act Regulations, and should be allowed in this case.

Lawyers for Halifax Regional Municipality, representing the police, and lawyers for the individual officers will now make written submissions in response to Maxwell’s.

Jeff Garber, spokesperson for the Police Review Board, said those submissions are due June 18, and the hearing itself will be scheduled after the board members — in this case, Jean McKenna, the chair, Kimberly Ross, and Nadine Bernard — make a decision on the scope.

---

The Halifax Examiner is an advertising-free, subscriber-supported news site. Your subscription makes this work possible; please subscribe.

Some people have asked that we additionally allow for one-time donations from readers, so we’ve created that opportunity, via the PayPal button below. We also accept e-transfers, cheques, and donations with your credit card; please contact iris “at” halifaxexaminer “dot” ca for details.

Thank you!