A judge has denied a bid to review the decision not to prosecute an Edmonton police officer who seriously injured a young Indigenous man with a kick to the head.
In reasons published this week, Court of King’s Bench Justice Michael Kraus said Pacey Dumas hasn’t cleared the high legal bar to warrant a judicial review.
At issue is the Crown’s decision not to pursue charges in 2023, after the province’s police watchdog found reasonable grounds that the officer — identified in court filings as Const. Ben Todd — committed an offence during an arrest.
Dumas was 18 years old when, early on the morning of Dec. 9, 2020, police showed up outside his family home, responding to a call about a fight and a man with a knife.
According to the Alberta Serious Incident Response Team report, Todd, referred to as the “subject officer,” told Dumas to get down and crawl toward him. As Dumas was on the ground, the officer kicked his head, with a civilian witness reporting it was “as if you’re kicking … a soccer ball.”
Dumas was knocked unconscious, and had to undergo emergency surgery for a brain injury. Police determined he was unarmed, and he was never charged with a crime.
After the release of the ASIRT investigation, the Alberta Crown Prosecution Service (ACPS) said there wouldn’t be a criminal case against the officer because there wasn’t a reasonable likelihood of conviction.
Prosecutorial discretion can’t be reopened in court through a judicial review unless there’s evidence of serious misconduct amounting to bad faith, improper bias or flagrant impropriety.
Kraus ruled that wasn’t proven.
“The actions of the subject officer may very well have shocked the conscience of the community. However, the actions of the subject officer are not at issue,” he said.
“Other than the decision not to prosecute, the applicant has provided no evidence of anything in the Crown’s decision-making that might shock the conscience of the community.”
But, Kraus concluded, “Nothing in this decision is intended to minimize what the applicant suffered or the long-lasting impact of his injuries.”
Result disappointing, but not a surprise, lawyer says
Crown prosecutors use a stricter legal standard than ASIRT when it comes to reviewing cases, weighing whether there’s evidence that amounts to proof beyond a reasonable doubt.
This week’s judicial review decision comes after Dumas attempted to privately prosecute Todd, but the Crown directed a stay of those proceedings. Dumas’s lawyer Heather Steinke-Attia is also representing him in a civil lawsuit.
She said in an interview Tuesday that the latest court ruling is disappointing, but not necessarily unexpected.
“The standard that has to be met by the applicant is so high, it’s basically impossible,” she said.
“Only in the context of judicial review of a Crown’s decision … there’s no transcript of their decision and there are no records producible of the information that was underlying the Crown’s decision.”
Steinke-Attia said with no requirement for ACPS to give a more detailed explanation about what happened, Dumas and his family still have unanswered questions.
“This matter ought to be in a public courtroom and the family deserves to be informed of why it’s not heading in that direction.”
