Edmonton officer who kicked teen in the head showed 'shocking lack of judgement' but will not be charged: ASIRT

An Edmonton officer who kicked an Indigenous teen in the head in 2020 will not be arrested, despite Alberta's police watchdog finding "reasonable grounds" to lay criminal charges.

On Thursday, the Alberta Serious Incident Response Team (ASIRT) publicly released the findings of its probe into the incident that left Pacey Dumas with a hole in his skull and "long lasting, if not permanent" injuries.

ASIRT concluded the officer "showed a shocking lack of judgement and disregard for the life" of Dumas, who was 18 at the time, stating the kick "cannot be supported."

ASIRT referred the case to the Alberta Crown Prosecution Service (ACPS) after finding "reasonable grounds that an offence may have been committed" by the officer, but prosecutors recommended last month that no charges be laid.

"It is shocking that the Crown prosecution has decided not to prosecute. They get to hide behind the secrecy of privilege and don't have to answer to the reasoning behind their decision," Heather Steinke-Attia, Dumas' lawyer, told CTV News Edmonton.

"I believe that's a cover up. Especially in circumstances like this where everything about this case cries out for explanation. It's beyond disappointing."

The ACPS said its decision was made after reviewing the entire ASIRT file and consulting with an independent expert. 

"While the circumstances outlined by ASIRT in this matter are disturbing, the role of the ACPS is to assess the triable evidence and provable facts in making a determination as to whether there is a reasonable likelihood of conviction," Greg Ball, issues advisor and legal counsel, told CTV News Edmonton in a statement.

"The ACPS standard for prosecution is a higher standard than that of the police. Courts have an even higher standard—before a person may be convicted of any crime, the offence must be proven beyond a reasonable doubt. These checks and balances mean that it is possible for one standard to be met, but for the case not to proceed at the next level due to the more onerous standard.

"In this case, an ACPS prosecutor reviewed the investigation and surrounding circumstances and concluded that the charges did not meet our standard for prosecution."

Steinke-Attia said a lawsuit against Const. Ben Todd, the officer who kicked Dumas, will proceed. Edmonton Police Service Chief Dale McFee and six unidentified officers were also named as defendants in the statement of claim filed in 2021, seeking a total of $690,000.

"Pacey is trying to process the disregard that he is experiencing from not only the police, the chief of police, but now the Crown prosecution service as well," Steinke-Attia said.

"The family would like to believe that their family matters."

'UNCONSCIOUS IMMEDIATELY'

The ASIRT report does not name Todd as the "subject officer," but says the subject officer was one of several who responded to a 911 call about a fight in west Edmonton on Dec. 9, 2020.

According to the report, the caller told police that a man with a knife entered Dumas' home.

The officer was standing beside two colleagues and holding a carbine rifle when he instructed Dumas to exit the house and crawl, on his stomach, toward him.

The officer claims that Dumas said he had a knife, was reaching into his pockets, and was not complying with orders to show his hands.

He admitted to kicking Dumas in the face, but said he was "forced to take action" because his hands were full, his fellow officers were not reacting, and another person began exiting the front door.

The kick left Dumas "unconscious immediately," the ASIRT report states, and he was rushed to hospital in life-threatening condition.

He underwent emergency surgery that saw a "significant portion of his skull" removed to relieve pressure on his brain and spent nine days in intensive care.

The report states it "was not necessary" for the officer to act in a "hasty and violent manner" because he had other officers to help, he called Dumas toward him, and the teen was lying on his stomach at the time.

ASIRT also noted that at the time Dumas was 5'6" and roughly 90 pounds while the officer was "significantly larger than him."

No knife was found on Dumas.

'VERY CONCERNING'

In a statement, EPS confirmed that Const. Todd is on leave with pay and a professional standards branch investigation has now started.

"EPS recognizes the significant interest in this incident, as well as the impact it has had on our entire community, and we are committed to addressing concerns when the investigative and court processes are complete," it said.

Toronto-based criminal defence lawyer and commentator Ari Goldkind said he was "shocked" to see that the officer was not charged and called a lack of explanation from Crown prosecutors "very concerning to the citizens of the province."

"If there was ever an example – whether you're anti-police, pro-police, or down the middle – that a police officer should have faced one criminal charge for this behaviour, this might be it," he told CTV News Edmonton.

"If you read that report and don't think that excessive force was used in this case, or at least should be put before a real court, then you're probably too much of a partisan for my liking."

Goldkind said he supports police but wants officers held accountable when they "cross the line," as he feels the officer did when he kicked Dumas.

He added he was "troubled" by the ASIRT report and encouraged other Albertans to read it.

With files from CTV News Edmonton's Nicole Lampa and Miriam Valdes-Carletti