Court backs Nova Scotia Police Review Board ruling on racial profiling complaint

The Supreme Court of Nova Scotia sided with the Nova Scotia Police Review Board in its decision to dismiss a complaint from a Black woman who says she was racially profiled when police pulled her over and arrested her in 2020.

"I find that the decision of the board was reasonable. I see no reason for it to be disturbed. This application for judicial review is dismissed," Justice Denise Boudreau noted in her decision dated Feb 7, 2024.

Kayla Borden was driving her vehicle in Dartmouth, N.S., during the early morning hours of July 27, 2020, when she was stopped, handcuffed and arrested by police.

The officers — Const. Scott Martin and Const. Jason Meisner — mistakenly believed she was a driver who fled from another police officer earlier that evening. Meisner said Borden's vehicle was the suspect's and Martin arrested her.

Borden was under arrest "for less than one minute" when another officer arrived and told Meisner and Martin they had the wrong person. Borden was then "released" from arrest, though she was detained a few more minutes for an ID check.

After the incident, Borden filed a complaint alleging the stop and arrest were unlawful, that it was racially motivated or was caused by racial profiling. She wanted the two officers to be formally disciplined by the Nova Scotia Police Review Board. The board found Borden's arrest "unfortunate" but lawful. It also found there was no evidence racial profiling was a factor in her arrest.

Borden provided three reasons to the police review board on why the officers deserved disciplinary sanction:

• That they had unlawfully arrested her.
• That they had not provided her with a right to counsel.
• That racial profiling had been a factor in the initiation and continuation of her arrest.

In its decision, the board found none of these concerns "had been borne out by the evidence" and Borden's complaints were dismissed.

For the court case, Borden wanted a review of the board's decision. She says it made an error in law when it determined Martin had lawful grounds to arrest her, that there was no racial profiling at play in her detention and no violation in her right to counsel.

While reviewing Borden's application, Boudreau noted the question was whether the police review board was reasonable in both its reasoning and conclusion to not discipline Martin and Meisner.

"In my view, the board did identify the appropriate test for assessing the reasonableness of an arrest and did engage with the evidence to apply the test properly to the facts as it found them," Boudreau wrote in the decision.

"Having found that the officer did have reasonable grounds to arrest, there was no Code of Conduct violation for the board to address further."

Borden said she was not provided her right to counsel after her arrest. While this was true, Borden was only detained for under a minute and the board had said there was no time.

"I cannot find anything unreasonable about the Board's reasoning and conclusions as to this issue," Boudreau said in her decision.

On racial profiling, the board noted Martin did not know Borden's race when he was approaching the vehicle and that he had already decided to arrest her before he saw her.

"I might also note (although the board did not explicitly note this in their reasoning), Const. Martin's evidence to the effect that he arrests everyone using the same procedure," Boudreau said.

"This evidence, and these findings, led the Board to the conclusion that racism or racial bias, either conscious or unconscious, were not factors in what occurred. Given the evidence before them, and their factual findings, their conclusions were entirely reasonable."

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.