Judge right to consider police use of force against persons of colour in sentencing cop, says Crown

STORY UPDATE (July 10, 2024): The Court of Appeal of Alberta issued a decision dismissing Alexander Dunn's appeal of his sentence. The judgment can be found here.

The issue of police officers' use of force against persons of colour was at the centre of an appeal argued Friday in Calgary as a former constable fought to have his jail sentence overturned after he was convicted of assaulting a handcuffed Black woman. 

Alex Dunn was found guilty of assault causing bodily harm stemming from an incident in December 2017. He threw Dalia Kafi on the ground head first after she pulled away from him when he tried to touch her head.

Kafi's head can be seen bouncing off the ground. She lay motionless as a pool of blood formed around her head. She eventually needed stitches and surgery for a broken nose.

Video of the violent incident was released during the trial. 

Calgary police officer on trial for assaulting handcuffed woman he threw to the ground

4 years ago

Duration 1:03

In this court evidence from Dec.13, 2017, Dalia Kafi was arrested by Const. Dunn for breaching her curfew. At the arrest processing unit, Kafi says she backed away from Dunn when he attempted to remove her headscarf. Dunn can then be seen throwing the handcuffed woman to the ground face first.

The trial judge ordered Dunn to serve two weeks on house arrest and two weeks under a curfew as part of his conditional sentence order. 

But the Crown successfully appealed, and Court of King's Bench Justice Nancy Dilts ruled an appropriate sentence was 30 days in jail, six months probation and 75 hours of community service. 

Dunn did not have to serve that jail time because Dilts stayed her sentence due to the passage of time and the fact he'd already finished serving his first sentence. 

'Position of trust over a vulnerable person'

Dunn, who was fired last November, asked the Court of Appeal to overturn Dilts's jail sentence in the hope it could help him appeal his dismissal before the Law Enforcement Review Board.

The Calgary Police Association — the union representing the city's officers — asked for and was granted intervenor status because of concern Dilts's decision sets the precedent for police officers convicted of similar offences to be sent to jail.

The panel has reserved its decision. 

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Defence lawyer Alain Hepner argued Dunn's case should not be the one that the court of appeal uses to set a new standard of sentencing for police officers.

In her decision, Dilts wrote that society, in recent years, has seen "modern social change and heightened public awareness, particularly as it relates to police use of force against vulnerable persons."

"Constable Dunn held a position of trust over a vulnerable person not only who was much smaller than he but who was a Black woman in handcuffs, resisting physical contact by a man," wrote Dilts. 

Hepner said Dilts should not have considered harm to the Black community because his client was not found to have racial motivations when he committed the assault.

But Alberta Court of Appeal Justice Jolaine Antonio — one of three judges on Friday's panel — challenged that argument.

"Police use of force against persons of colour has been in the public eye. Are you saying we cannot take judicial notice?" asked Antonio.

"There can be a difference between what Dunn intended and what Ms. Kafi and what society perceived. Is the latter irrelevant?"

'Societal values can change sentencing'

Another panel member, Justice Peter Martin, also challenged Hepner's position.

"We regularly adjust sentences to reflect the reality of our community," said Martin. "Societal values can change sentencing regimes."

"We have always done so and sometimes quite significantly."

Police union lawyer Alias Saunders expressed concern that Dunn's jail sentence could set precedent that would result in over-punishing police officers who make split-second decisions while in potentially dangerous situations and end up using excessive force.

But Justice Martin said "that's not this case."

'Completely unprovoked' violence

Martin noted Dunn's assault on Kafi was "completely unprovoked, excessive violence which injured a citizen."

Saunders asked the panel to "narrow its decision in this case … to Const. Dunn and these facts" so that the panel's decision doesn't "change the range of sentences that peace officers have come to expect and rely on." 

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After the defence and union lawyers made their arguments, prosecutor Troy Couillard made brief submissions, asking the panel to leave Dilts's sentence in place.

Couillard told the court that "recognizing social mores is not a new concept" and said Dilts was "entitled to take those into consideration.

"We cannot function as a society without respect, confidence, trust in the administration of justice," said Couillard. "The original sentence did not do that."

"It is the justice system that puts people into police custody. When called upon, the justice system must protect those people."