No charges for Edmonton police constable who kicked Indigenous teen in the head

An Edmonton police constable who kicked an Indigenous teenager in the head — leaving him with life-altering injuries — won't face criminal charges even though Alberta's police watchdog says the officer displayed a "shocking lack of judgment and disregard" for the teen's life.

According to an investigative report released by the Alberta Serious Incident Response Team Thursday, the agency had asked the Alberta Crown Prosecution Service to consider laying excessive force charges against the officer, but the Crown declined to prosecute.

The officer, armed with a carbine rifle, acted in a "hasty and violent" manner, ASIRT executive director Michael Ewenson said in the report.

"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 said.

Pacey Dumas, a member of the Little Red River Cree Nation, was 18 in December of 2020 when he sustained a serious brain injury while being arrested in west Edmonton.

Dumas spoke to reporters Friday, saying he still has anxiety when he sees a police officer or police vehicle.

"What they did to me, of course I'm not going to trust them," Dumas said. 

"[It] broke all of us, our whole family."

A lawsuit filed by the family alleges Dumas was assaulted without provocation by Edmonton Police Service Const. Ben Todd. In the ASIRT report, Todd is identified only as the "subject officer."

Dumas spent nine days in intensive care and needed extensive follow-up treatment. To relieve the pressure on his brain, part of his skull was surgically removed and eventually replaced with a metal plate.

In Thursday's report, Ewenson said there were reasonable grounds to believe the officer committed an offence. However, on March 30, the Crown recommended charges not be pursued.

"This does not, however, mean the [subject officer's] conduct was appropriate," Ewenson said in the report.

"It showed a shocking lack of judgment and disregard for the life of the [affected person].

"The public expect significantly better from a police officer. The [subject officer] was standing above a 90-pound 18-year-old and pointing a firearm at him with two other officers nearby."

The Alberta Crown Prosecution Service (ACPS) responded to CBC's request for comment on Friday afternoon. 

"The decision to not recommend charges was not an endorsement of the officer's actions or their tragic consequences.  Rather, the role of the ACPS is to provide an objective assessment of the viability of potential charges based on all the relevant facts," the statement reads in part. 

ACPS said it did a comprehensive review of the case, including engaging an independent expert on the  use of force, and determined there was not a reasonable likelihood of conviction.

'Still in shock'

Dumas's lawyer, Heather Steinke-Attia, said the Crown's decision against pressing charges "quashes" ASIRT's mandate to hold officers accountable for harming members of the public. She said the Crown should have to explain its decision, which she characterized as incomprehensible.

"There needs to be transparency. This can't occur. Police can't abuse their powers in this way."

ASIRT has the authority to lay criminal charges but it's unlikely the case would reach a courtroom without co-operation from the Crown, Steinke-Attia said.

"I'm still in shock at this result because I didn't think that the Crown would have the audacity to slap this family in the face." 

Police responded to 911 call

According to the ASIRT report, EPS officers were responding to a 911 call about a fight, and a man armed with a knife.

Four officers who responded surrounded the Dumas family home and told everyone to come outside. Dumas got down on his hands and knees and began to crawl "on his belly" toward the officers, as directed, the ASIRT report said.

Dumas began to reach into his pockets or waistband, the report said. The subject officer told investigators that he repeatedly asked Dumas to show his hands but he didn't comply.

He warned him that if he didn't take his hands of out his pockets, "he would kick him the face," ASIRT said in the report.

The officer didn't submit to an interview but provided his notes and police report to ASIRT. In his own report, he asserted that he needed to kick the suspect to gain his compliance and felt forced to act.

The officer wrote that he didn't have time to command one of the other officers, who were directly next to him and were the less-lethal options, is "not believable," ASIRT said. 

"The officers were assembled in that way to provide a range of intervention options, and the [subject officer's] role was lethal cover with his carbine.

"His decision that he should be the one to act, and then to use that level of force, was not necessary."

Dumas was not armed with a knife, the ASIRT report said.

Head kicked like 'soccer ball': witness

A neighbour described how Dumas was lying on the ground squirming on his belly, with his arms behind his back.

The witness told ASIRT investigators the officer kicked the suspect in the face "as if you're kicking ... a soccer ball." Dumas then lost consciousness, she said.

Ewenson said the officer's decision to kick the teen was unreasonable and undoubtedly dangerous. 

"A kick to the head always presents a serious risk," he wrote.

He said that if the officer kicked Dumas like he would kick a soccer ball, as the witness had described, "it was clearly a use of force that was intended or likely to cause death or grievous bodily harm."

Pacey's brother Blair was also arrested outside the family home that evening but neither brother was ever charged. Blair Dumas, who died in March 2022, was haunted by seeing his brother harmed, said Steinke-Attia.

"This family has been devastated by this incident. And these are not criminals," she said. "These were two very nice young men who had no criminal records."

"[Todd] gets to live his life perfectly fine, while we'll be here grieving every day," Dumas said. "He gets to go home every day to a happy family. Makes no sense. It's not fair."

In a statement to CBC, Edmonton police said Todd remains on leave with pay.

With the ASIRT probe now complete, police said the EPS professional standards branch will open an investigation.

The $725,000 civil lawsuit, filed with the Court of King's Bench on behalf of Dumas, his brother and mother, is ongoing. None of the allegations have been proven in court.

'Inherent racism'

The Ottawa-based Congress of Aboriginal Peoples said Thursday it is "deeply disturbed" that Todd won't be charged. The case that shows the "inherent racism and prejudice" among police in Alberta, CAP said in a statement.

"Time and time again, police are not held accountable for this kind of violence against Indigenous people," CAP national Chief Elmer St. Pierre said in the statement.

"Governments coast to coast consistently trumpet the importance of reconciliation while justice systems continue to let police off the hook for violent crimes."

The $725,000 civil lawsuit, filed with the Court of King's Bench on behalf of Dumas, his brother and mother, is ongoing. None of the allegations have been proven in court.

Doug King, a professor of justice studies at Mount Royal University, said the ASIRT report suggests the watchdog was proposing an aggravated assault charge against the officer.

It's rare for the Crown to decline such a recommendation outright but the decision would be based solely on the likelihood of a conviction, King said.

King said he trusts the Crown's judgment but the outcome will undermine public confidence safeguards designed to hold Alberta police officers to account.

"It does go a little bit toward eroding the confidence that the public might have in the system itself," he said. "I think it's a system-wide erosion. You can't lay it at the feet of ASIRT."