Borden’s lawyer, board chair debate line of questioning around systemic racism during constable’s testimony
Andrew Gough, the lawyer representing the Halifax Regional Police, openly scoffed and laughed at the notion that the denial of systemic racism within the HRP by one of its officers would be evidence, in of itself, of systemic racism within the force.
This happened just before 3pm Monday, the opening day of a Nova Scotia Review Board hearing into Kayla Borden’s appeal into her dismissed complaint against members of the Halifax Regional Police.
Borden, who is Black, testified at the start of the hearing that she felt terrified and humiliated in the early morning hours of July 2020 when she was mistaken for a white man and arrested in the middle of the night while driving home from a relative’s house.
In her testimony, Borden said she was not read her rights, before being told she was no longer under arrest. She said she was instructed not to leave and to provide her license and registration information.
Borden said she feels the arrest was influenced by racial bias as well as systemic racism within Halifax Regional Police.
Cst. Stuart McCulley
Cst. Stuart McCulley took the stand just after 11am. McCully, 39, joined the Ontario Provincial Police in 2006, and moved back to Halifax and joined the HRP in 2011.
McCulley said he was on duty and parked at Mount Saint Vincent when he saw a car with no license plate and no headlights travelling on the Bedford Highway the night Borden was arrested. He followed the car, pulled up alongside it, and determined it was a white man in a black baseball cap.
He fell back behind the vehicle and started to pursue it at a high speed. A higher ranking officer eventually called off the chase for safety reasons.
McCulley said when communicating over the radio, officers are trained to give as much detail as possible about descriptions and locations, but also to be “straight to the point.”
He acknowledged that he described the car over the radio that night as both “black” and “dark coloured.” He said he didn’t describe the driver of the vehicle as white. He also said that although he didn’t make a point to describe the driver as a man, that was likely because he referred to the driver as “he” at several points.
McCulley said he didn’t think that describing the driver as a white man would have prevented Borden from being stopped because he doesn’t think the officers could tell who was driving Borden’s vehicle when they first pulled her over.
McCulley was not asked whether he would have made a point to describe the driver as Black, had it been a Black driver, or whether Borden’s race played a role in the nature of the interaction once she was pulled over.
He said when he arrived on the scene of Borden’s stop, McCulley said he immediately recognized it was a different car, passed the information over the radio, and turned around and drove away without seeing Borden or talking to any of the officers face to face.
Borden’s lawyer, Devin Maxwell, then asked McCulley about department policy with respect to when officers are allowed to obtain identification. Jean McKenna, the chair of the Police Review Board, quickly interjected.
“Is the Board telling me I’m not allowed to ask this witness whether the HRP has a policy on how to properly identify a suspect?” Maxwell asked.
Maxwell and McKenna then went back and forth arguing the merits of Maxwell’s line of questioning regarding the collection of citizens’ information by police.
“A lot of what you’re talking about is related, in part at least, to the exercise of discretion by police officers,” McKenna told Maxwell. “And we’ve heard lots of evidence in many many cases about policies. And there are many, many, many policies within Halifax Regional Police.”
“The position that the HRP is taking here [is] that this was a mistake,” Maxwell said. “The question is, why did this mistake happen?”
McCulley sat as Maxwell and McKenna debated for several minutes about what questions Maxwell should ask. At one point, McKenna suggested that Maxwell’s questions would be better suited for Halifax Police Chief Dan Kinsella who is set to testify on Thursday.
Gasps were then heard among the gallery when McKenna said: “We’ve seen so many policies, there are many many policies out there. The police officers don’t study them and memorize them, and I bet [they] may not even be able to tell you how many there are.”
The exchange between Maxwell and McKenna continued.
“It’s not as clear to me perhaps as it is to you that police officers don’t know the policies of their own department,” Maxwell said.
“Hardly, Mr. Maxwell. You know perfectly well that’s not what I’m telling you,” McKenna told Maxwell before reiterating to him that she felt his questions were too vague.
“If you come to the conclusion that he doesn’t know anything about, let’s say, practices and stopping a vehicle… [If] he doesn’t know anything about it…” McKenna said before taking a long pause.
“That what I would like to know,” said Maxwell.
“What does that matter?” McKenna asked.
Systemic racism
McCulley resumed his testimony just after 1:30pm.
An hour later, Andrew Gough, the lawyer for the HRP, quickly objected to Maxwell questioning McCulley about the existence of systemic racism with HRP.
Gough suggested Maxwell ask a more relevant question as to whether McCulley had any direct knowledge that racial bias played a role in Constables Martin and Meisner’s (the two officers named in the complaint) role in Borden’s arrest.
“That’d be a great question if that’s what I wanted to know, but that’s not what I want to know,” Maxwell replied.
“What you want to know is the opinion of this officer as to whether there is systemic racism, currently, within Halifax Regional Police,” McKenna said.
“Right,” said Maxwell. “Precisely what I want to know.”
“He says he has not observed any racism. So, what is [he] going to add to that?” McKenna asked.
“I don’t know, I haven’t heard the answer,” Maxwell responded.
Maxwell and McKenna then debated whether or not McCulley could be asked questions about the Wortley Report and whether or not he has personally read it. McKenna argued that questions about the Wortley Report would be better suited for Chief Dan Kinsella, who is testifying later in the week. Gough, the HRP lawyer, and Nasha Nijhawan, the lawyer representing Martin and Meiner, remained silent throughout that exchange.
Eleven minutes passed since Cst. McCully last spoke and when Gough raised his initial objection about the subject or racism within HRP.
“I think that the line that we’re going down here,” Maxwell said, “from my friends [Gough and Nijhawan] and from The Board, perhaps demonstrates a lack of understanding about what systemic and institutional racism …”
McKenna abruptly interrupted.
“I can assure you, there’s no misunderstanding on this board about systemic racism,” she said. “I can assure you that is the case.”
Nijhawan then spoke.
“Before my friend speaks for me, I think it may be some assistance to hear that on behalf of the respondents there will be no argument made that systemic racism does not exist,” she said. “So the opinion of a particular officer [McCulley] is entirely irrelevant. You’re not going to hear that from [Martin and Meisner]. We’re not going to say there’s no systemic racism.”
“No systemic racism period, or no systemic racism within the HRP?” Maxwell asked.
“My position is going to be there’s systemic racism in every part of our society, including every part of the justice system, including the HRP. That’s the position on behalf of the respondents. No one’s gonna say that that’s not true. So maybe we can save ourselves all some energy in asking the personal option of every witness as to that fact, and I can assure you that, in argument, this respondent that is not going to be an argument that is advanced.”
“I guess what I was trying to get at was … if he says to me he doesn’t believe there is [systemic racism within HRP], then to me that’s evidence of systemic racism [in of itself],” Maxwell said, to which Gough, who raised the initial objection on behalf of the HRP, mockingly laughed out loud about.
The hearing is set to continue throughout the rest of the week at the Best Western Hotel on Spectacle Lake Drive in Burnside in Dartmouth.
