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Non-public prosecution launched towards Edmonton police officer spared felony costs after kicking teenager in head

Pacey Dumas and his lawyer, Heather Steinke-Attia, have been within the Alberta court docket of justice Monday to swear a non-public data towards Const. Ben Todd alleging aggravated assault

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An Indigenous man kicked within the head by an Edmonton police constable has launched a non-public prosecution after the Alberta Crown declined to put costs towards the officer.

Pacey Dumas and his lawyer, Heather Steinke-Attia, have been within the Alberta court docket of justice Monday to swear a non-public data towards Const. Ben Todd alleging aggravated assault.

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The case will go earlier than a choose subsequent month to find out whether or not Todd shall be formally charged.

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The transfer comes after the Alberta Crown Prosecution Service (ACPS) declined to prosecute Todd, regardless of a scathing opinion from the province’s police watchdog discovering “affordable grounds” to consider Todd might have dedicated against the law. 

ACPS didn’t elaborate on its determination, apart from saying it didn’t consider it might win the case.

Steinke-Attia mentioned ACPS’s refusal to prosecute left non-public prosecution as one in every of their few alternate options. Dumas can also be pursuing a civil case towards Todd and the Edmonton Police Service.

“ASIRT investigated, concluded felony costs have been warranted, and the Crown prosecution service refused to prosecute,” Steinke-Attia mentioned Monday. “They’ve successfully blocked entry to justice for this household. That is the one different technique that we now have obtainable to us to have this heard by a choose.”

Dumas mentioned he’s nervous however hopeful.

“He modified my household heaps,” Dumas mentioned of Todd, who kicked Dumas within the head as he lay on the bottom exterior his mom’s west Edmonton house. The kick knocked him unconscious and required surgical procedure to take away a piece of his cranium.

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Dumas attributes the dying of his brother Blair, who died by suicide 15 months after the incident, to trauma from having witnessed the kick.

“I misplaced my brother to this,” mentioned Dumas. “He couldn’t carry on going.”

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Pacey Dumas, seen throughout an interview in Edmonton, on Tuesday, Nov. 2, 2021, exhibits a photograph of his head the place a kick from an Edmonton Police Service officer left him with with a gap in his cranium. Photograph by File picture /Postmedia

‘Surprising lack of judgment’

Non-public prosecutions are a hardly ever used device that permit members of the general public to launch felony proceedings — an influence normally reserved for police and prosecutors.

The Alberta Critical Incident Response Crew (ASIRT) spent greater than two years investigating the Todd case. The incident started Dec. 9, 2020, after a name from a person claiming there had been a battle at his house involving a person with a knife.

Todd was dispatched to Dumas’s mom’s home together with a half-dozen different officers, together with a canine crew. Holding a carbine and backed by one other officer with an ARWEN baton launcher, Todd watched as Dumas exited the home and complied with directions to crawl on his stomach towards the officers.

4 officers who witnessed the incident declare Todd kicked Dumas after Dumas claimed he had a knife and reached for his waistband. Dumas was later discovered to be unarmed, whereas a knife discovered within the basic space the following day was decided to be unconnected to the incident. He was by no means charged. 

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A neighbour who witnessed the incident mentioned Dumas was squirming on the bottom together with his arms behind his again when the officer kicked him “as in case you’re kicking … a soccer ball.”

ASIRT government director Michael Ewenson slammed the transfer, noting the officer was “standing above a 90-pound 18-year-old and pointing a firearm at him with two different officers close by providing help.”

Ewenson famous that the one purpose Dumas was wherever close to Todd was as a result of he complied with officers’ directions to crawl in the direction of them.

“Whereas the regulation permits police to make use of power throughout an arrest in acceptable circumstances, utilizing a life-altering kick on to the top of this (individual) as a primary resort can’t be supported,” Ewenson mentioned, including the kick displayed a “surprising lack of judgment and disrespect for the lifetime of (Dumas).” 

Regardless of ASIRT’s findings, ACPS declined to prosecute the case, saying prosecutors in Calgary reviewed the investigation “and concluded that the costs didn’t meet our customary for prosecution.”

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Particularly, ACPS mentioned it didn’t consider there was a “affordable probability of conviction” within the case. It additionally cited an opinion from “an unbiased knowledgeable on using power,” however declined to establish the individual or clarify why their experience trumped ASIRT, which is made up of present and former cops and headed by a educated Crown prosecutor. 

The choice to not lay costs was met with backlash, with Mayor Amarjeet Sohi amongst these saying Todd ought to have confronted costs.

Todd stays on paid go away for an unrelated matter, police mentioned.

In a press release Monday, ACPS mentioned it “has the proper and duty to oversee all felony prosecutions within the province besides these undertaken by the legal professional basic of Canada.”

“This duty contains the supervision of prosecutions undertaken by a non-public citizen as a non-public prosecutor.”

ACPS has a protocol for personal prosecutions and mentioned it should “assess this matter in the end and in accordance with the protocol.”

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Irene Dumas and son Pacey Dumas reply questions on April 28, 2023, concerning the Alberta police watchdog slamming the actions of a police officer who kicked Pacey Dumas within the head, however says it won’t proceed with costs as a result of prosecutors have declined to take up the case. Pacey Dumas is holding an image of his brother Blair Dumas who was additionally there when Pacey Dumas was kicked within the head. Blair Dumas later died by suicide. Photograph by Greg Southam /Postmedia

‘This must go earlier than a choose’

Steinke-Attia, a former Edmonton Police Service lawyer, mentioned ACPS is ready to quash a non-public prosecution at any stage.

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She beforehand accused the service of partaking in a “cowl up,” and mentioned that if ACPS does take steps to forestall the non-public prosecution from going forward, “that will be a really robust indication that they’ve an incentive, for some purpose, to guard the officer, versus letting this matter go earlier than the courts because it ought to.”

“It must be in a court docket of regulation — not a choice made behind closed doorways, confidentially, privately, secretly, the place they don’t need to disclose any purpose for his or her determination,” she mentioned. “This must go earlier than a choose. It must be in open court docket, (with) proof introduced and an neutral choose deciding.”

She mentioned if the case does truly go to trial, the prosecution service is meant to assign a prosecutor — although the Prison Code does permit a non-public lawyer to run the case in sure circumstances.

The case is subsequent in court docket Oct. 13.

The Edmonton Police Affiliation, Todd’s union, declined to remark.

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