A family’s quest to have their day in court after an Edmonton Police Service officer kicked a young man in the head has hit another roadblock.
The family of Pacey Dumas, who was left with life-altering injuries following the December 2020 incident, was trying to circumvent the Alberta Crown Prosecution Service (ACPS) and get the officer charged with aggravated assault.
Last month, the Dumas family began the process of launching a private prosecution after Dumas was injured by an EPS officer responding to a fight at a home in west Edmonton.
Family of Pacey Dumas seeks private prosecution following Edmonton police kick to head
Alberta’s police watchdog, the Alberta Serious Incident Response Team (ASIRT), called the actions of the officer, Const. Ben Todd, unreasonable hasty and violent, and said there were reasonable grounds to believe Todd had committed a criminal offence.
ASIRT had recommended charges but the ACPS declined to move forward with the case, saying it felt would not have a reasonable chance of conviction.
“The police are being sent a message that there are no consequences, that they are above the law,” said Heather Steinke-Attia, legal counsel for Pacey Dumas and his mother Irene Dumas.
“This can’t happen. The family is committed to pushing forward and seeing change occur.”
The family was set to appear before a judge at the Alberta Court of Justice this month to lay out its argument on why the case should be prosecuted: either by the Crown, or more unusually, by their lawyer herself acting in the Crown’s place.
But this weekend, Steinke-Attia announced the chief Crown prosecutor filed a letter at court on Sept. 29 staying the private prosecution proceedings.
“The case for laying charges against the officer was scheduled to be heard in provincial court on Oct. 13, 2023, but the Crown has again blocked all access to justice for Pacey and his family,” Steinke-Attia said in a statement on Sunday.
Speaking with Global News on Tuesday, Steinke-Attia said the move wasn’t shocking, but that made it no less disappointing.
“We are a little surprised that of the timing that it was not only done the day before the National Day of Truth and Reconciliation — which was highly insensitive —but that they didn’t even allow the family to at least attend court on October 13th and present their information to the court, to give them some sense of justice and transparency to the case.”
The ACPS said it has considered the affidavit that was filed as part of the private information filed by Mr. Dumas and it still does not meet the ACPS standard for prosecution. As such, the charge was stayed on Sept. 29, 2023.
“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 Crown said in a statement to Global News on Tuesday.
As the ACPS stated when the challenge was first launched, the decision to not recommend charges was not an endorsement of the officer’s actions or their tragic consequences, it said — 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 ACPS standard for prosecution is higher than that of the police, it said, adding the courts have an even higher standard of proving guilt beyond a reasonable doubt.
The Crown said the standards remain the same whether a charge is laid by law enforcement or via private information.
To proceed with a charge, the prosecution must be satisfied a case meets two fundamental tests: is there a reasonable likelihood of conviction and is there a public interest.
In addition to that, when police officers are involved, they must look at Section 25 of the Criminal Code, which authorizes police to use as much force as is necessary in an arrest so long as it is not excessive.
“This is necessarily a very high burden to meet,” the Crown said.
Steinke-Attia doesn’t accept the reasoning.
“The Crown’s explanation, publicly given, is simply that it’s not in the public interest and the standard of prosecution isn’t met in that there’s no likelihood of conviction. This is hollow statements. They are never connected to any of the evidence for anyone knowledgeable in criminal law and knowledgeable in the evidence of this case.
“That is unacceptable conclusion.”
She said said the case deserves more transparency in an open court.
“When somebody who is not resisting police, totally compliant, lying on the ground, surrounded by armed officers, unarmed, no criminal history — receives this level of severe injury, almost death. It cries out for explanation,” she said.
“It is incomprehensible that this case would not be put before a court, to allow even the officers to give an explanation as to why they did what they did.”
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The incident in question happened the morning of Dec. 9, 2020, when police were called about a fight involving a man with a knife near 62nd Avenue and 178th Street.
According to the ASIRT report and the family, when police arrived, Dumas — then 18 — and his older brother Blair were ordered to come out of the house and willingly did so, laying on the ground.
According to the officers interviewed by ASIRT, Dumas followed directions to start crawling on his belly towards the officers.
According to the ASIRT report, officers claimed Dumas told them he was the person with a knife and Dumas reached into his pockets or waistband. The officer then told Dumas to take his hands out or he would kick him.
Todd then kicked Dumas in the face “as if you’re kicking a soccer ball,” according to witness reports. Dumas was knocked unconscious and began to bleed, said ASIRT.
While police officers are allowed to use deadly force if they believe it’s necessary to save their lives or the lives of others, ASIRT questioned if the force was proportionate and if the officers were in danger.
Dumas weighed 90 pounds and was already on the ground. ASIRT also noted his proximity to the officer was a result of the officer’s orders.
Neither brother was ever charged and no knife was found.
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Dumas was rushed to hospital and diagnosed with critical intracranial injuries: a subdural hemorrhage and midline shift.
Dumas underwent emergency surgery where a significant portion of his skull was removed to relieve pressure on his brain. He spent nine days in the ICU and ASIRT said the effect of his injuries will be long-lasting, if not permanent.
To this day, Dumas said he can’t remember what happened that day, nor can he recall being in the ICU.
His brother Blair was there during the kick and had been in handcuffs on the ground. The family said his mental health spiralled after the incident as he felt he couldn’t protect his younger brother. He died by suicide in March 2022.
Steinke-Attia said the ACPS’ refusal to prosecute the case left private prosecution as one of the few alternatives. Now, she said they’re researching their next steps.
“The reality is that this is a path less travelled in law, and we have a lot of research to do.
“Fortunately, I have legal counsel from all over the country equally disturbed by the circumstances of this case offering help, and research, and suggestions on and case law, on which way to go from here.”
Dumas also launched a civil lawsuit against Todd and the EPS in 2021.