Cree man loses bid to privately prosecute Edmonton police officer who kicked him in head

A Cree man's attempt to privately prosecute the Edmonton police officer who kicked him in the head — leaving him with life-altering injuries — has been shut down by the Crown.

On Friday, chief prosecutor Sarah Langley directed the court to issue a stay of proceedings in an assault charge faced by Edmonton Police Service Const. Ben Todd, bringing an end to proceedings launched by Pacey Dumas, the young man he injured.

Dumas, a member of the Little Red River Cree Nation, was 18 in December 2020 when he sustained a serious brain injury during an arrest in west Edmonton.

Todd's kick knocked Dumas unconscious and caused his brain to swell. The teen spent nine days in intensive care. Part of his skull was surgically removed and eventually replaced with a metal plate.

The Alberta Crown Prosecution Service (ACPS) had previously decided against pursuing charges against Todd despite a report from Alberta's policing watchdog in April of this year that found the officer displayed a "shocking lack of judgment and disregard" for the teen's life.

Following its investigation, the Alberta Serious Incident Response Team (ASIRT) asked the prosecution service to consider laying excessive-force charges against Todd, but the Crown declined to prosecute. 

In response, Dumas and his lawyer, Heather Steinke-Attia, attempted to prosecute Todd independent of the Crown, a rarely used legal tactic that aimed to put the matter before a judge with the Alberta Court of Justice.

On Sept. 11, Dumas filed what is called a private information, swearing that a crime had been committed and alleging Todd committed aggravated assault.

However, the Crown has ultimate decision-making power on all forms of prosecutions in the
province and whether they should proceed.

The case was set to go before a judge next week in a pre-enquete hearing that has now been cancelled.

'Very high burden'

In a statement Monday, the ACPS maintained that the case is not viable because a conviction is unlikely.

"While the circumstances outlined by Mr. Dumas and his counsel in this matter are disturbing, the role of the ACPS is to provide an objective assessment of the triable evidence and provable facts in determining whether there is a reasonable likelihood of conviction.

"The initial 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 consider the viability of potential charges based on all the relevant facts." 

The prosecution service noted that in order to proceed with a charge, the Crown must be satisfied a case meets two fundamental tests: is there a reasonable likelihood of conviction and is there a public interest.

"The Criminal Code authorizes police officers to use as much force as is necessary so long as it is not excessive," the statement said.

"In order to secure a conviction against a police officer, the court must be satisfied beyond a reasonable doubt that the force was in fact excessive. This is necessarily a very high burden to meet."

The arrest

According to the ASIRT report, Edmonton police 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.

Todd told investigators that he repeatedly asked Dumas to show his hands but he didn't comply. Todd then kicked the teen in the head.

Dumas was not armed and was never charged.

He has also launched a civil case against Todd and the Edmonton Police Service.

"The Dumas family is disappointed to have their access to justice blocked again," Steinke-Attia said in a statement.

"It is beyond comprehension that a case of such extreme violence by police action will not be subject to any form of public accountability or transparency."