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Crown declines ASIRT recommendation to lay charges against police officer

May 9, 2023  By Jeremy Appel, Local Journalism Initiative Reporter

May 9, 2023, Alberta – Alberta Crown prosecutors have declined to press charges against an Edmonton police officer who kicked an Indigenous teenager in the head, despite the province’s police watchdog suggesting it do so.

On April 27, the Alberta Serious Incident Response Team (ASIRT) released its decision on the case of Pacey Dumas, who suffered a major head injury following an arrest by Edmonton Police Service (EPS) Const. Ben Todd, who is currently on paid leave from the force.

Dumas, who was 18 at the time of his arrest and weighed 90 pounds, said Todd kicked him in the head unprovoked as he laid on the ground outside his mother’s house in late-2020. As a result of the alleged assault, Dumas had to have a tennis ball-sized piece of his skull removed, which has been replaced with metal, to relieve pressure on his brain during a nine-day hospital stay.

While ASIRT’s report harshly criticized Todd’s actions, it said it couldn’t proceed with criminal charges, because the Alberta Crown Prosecution Service “recommended no charges” against Todd, who isn’t named in the decision, but referred to as “the officer.”

“This does not, however, mean the officer’s conduct was appropriate,” ASIRT executive director Michael Ewenson wrote in the decision. “It showed a shocking lack of judgment and disregard for the life of Dumas. The public expects significantly better from a police officer.”

Todd was “standing above a 90-pound 18-year-old and pointing a firearm at him with two other officers nearby offering assistance. While the law allows police to use force during an arrest in appropriate circumstances, using a life-altering kick directly to the head of this (person) as a first resort cannot be supported,” the report noted.

Heather Steinke-Attia, Dumas’s lawyer, said she was “disgusted and shocked” by the Crown’s decision not to lay charges.

She said Dumas’s mother burst into tears when Steinke-Attia called her on the evening of April 26 to inform her of the Crown’s decision.

“This is a cover-up. This is, for some reason, a path that the Crown Prosecution Service continues to take in protecting officers who don’t deserve protection,” said Steinke-Attia, who used to serve as a lawyer for the EPS.

She noted there were “independent eyewitnesses” to Todd’s alleged assault on Dumas, as well as Dumas’s brother.

“There’s no way that these actions can be justified by this officer in the circumstances – in any circumstance, but certainly not the ones that unfolded,” said Steinke-Attia. “I am not letting this go.”

The incident occurred on the evening of Dec. 9, 2020, after a man called the EPS to report a fight had occurred in his home and that a man was brandishing a knife, according to the ASIRT report.

Todd was one of six officers sent to the house, in addition to a K9 unit.

Three officers were stationed behind the house while Todd, who was armed with a carbine, and two others, one of whom was armed with a “less-lethal” ARWEN projectile launcher, were in front.

According to the four officers who witnessed the altercation, Dumas was compliant as he exited the house, crawling on his belly towards the officers as requested.

Dumas admitted he was the person with the knife and reached for his waistband, the officers said. Todd threatened to kick him in the face if he didn’t stop.

Dumas continued reaching for his pocket, and then Todd “delivered a kick to his head,” the report says.

Todd’s kick was “as if you’re kicking a soccer ball,” said a neighbour who witnessed the incident, but has no connection to Dumas.

Pacey’s brother Blair, who was also arrested that evening, although neither sibling was criminally charged, also witnessed the event. But Blair has since died.

After the kick to his head, Pacey Dumas was instantly rendered unconscious and handcuffed by one of the officers. Paramedics on site “immediately recognized that his condition was very serious” and had to repeatedly ask the officers to remove the handcuffs, according to the report.

Before he was taken to the hospital in life-threatening condition, one of the officers searched him for the knife in question, but it wasn’t on him. Investigators found a knife near the house the next day, but it wasn’t the same one.

“While the law recognizes that police officers operate in dynamic situations, it is difficult to see how the life of any officer was threatened by the 90-pound (Dumas), who was laying on the ground and covered by multiple officers with a range of weapons and a police dog,” Ewenson wrote, concluding that Todd acted in a “hasty and violent manner.”

Edmonton Journal reporter Johnny Wakefield notes that ASIRT can lay charges on its own, but typically doesn’t do so without the Crown determining there’s a “reasonable” chance of conviction.

ASIRT’s own standard of evidence is that if its executive director believes there is “reasonable grounds” to think the officer committed a crime, rather than a reasonable chance of conviction.

From 2015 to 2020, ASIRT concluded 66 of 352 files it handled, or approximately 19 per cent, warranted charges. Of those 66, just 22, or one-third, resulted in the Crown laying charges.

In a statement to the Journal, the Crown’s legal counsel Greg Ball called the circumstances of the case “disturbing,” but nonetheless maintained that the case couldn’t be proven beyond a reasonable doubt in court.

The prosecution service “has carefully and thoroughly reviewed the entire file provided by ASIRT and consulted with an independent expert on the use of force in reaching the determination not to proceed with a prosecution,” Ball wrote, adding that the Crown’s senior counsel “reached the same conclusion.”

EPS spokesperson Caroline Maran said the incident is being investigated by the service’s professional standards unit, which could lead to professional discipline.

“The EPS recognizes the significant interest in this incident, as well as the impact it has had on our entire community,” Maran wrote in an email to the Journal. “We are committed to addressing concerns when the investigative and court processes are complete.”

Dumas has filed a $400,000 lawsuit against Todd and the EPS in civil court, but trial dates haven’t been arranged yet.

In response to the Crown’s decision not to recommend charges, the Criminal Trial Lawyers Association’s (CTLA) policing committee reiterated its call, first made in 2018, for reform to how the Crown decides whether to prosecute police officers.

A CTLA statement said this “process lacks competence, integrity, and transparency and therefore undermines public confidence and the integrity of the criminal justice system.”

“Time and time again, there have been decisions made by prosecutors with the Alberta Crown Prosecution Service (ACPS) that appear to be or are perverse, negligent, and/or biased in favour of the police,” the statements said.

The CTLA wants there to be “clear statements” explaining the reasoning behind the Crown’s decision not to lay charges, as ASIRT does, and for the names of the prosecutors involved in that decision to be made public.

The association’s statement calls the decision in the Dumas case “disgraceful and perverse,” but expresses hope that it “will be the last straw which will lead to effective reform by the Minister of Justice.”

– Alberta Native News

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