Despite acting in a way described as “unreasonable” by Alberta’s police watchdog, an Edmonton Police Service officer who kicked a man in the head in the west end — leaving him with life-altering injuries — will not face criminal charges.
The report from the Alberta Serious Incident Response Team gives more information into the morning police were called about a fight involving a man with a knife near 62 Avenue and 178 Street.
It happened on Dec. 9, 2020.
The victim, Pacey Dumas, had retreated to his house in the area, said ASIRT. The report said the man with a knife had gone into that house.
The subject police officer, Cst. Ben Todd, told everyone in the house to come outside and Dumas, who was 18 at the time, and his brother Blair obeyed.
According to the officers interviewed, Dumas followed directions to start crawling on his belly towards the officers.
Dumas said he was the person with a knife and reached into his pockets or waistband, according to the report.
“(Todd) then told (Dumas) that if he did not take his hands out of his pockets, he would kick him in the face. He believed he needed to do this to gain (Dumas’s) compliance and arrest him,” reads the report.
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.
(Todd) did not say Dumas ignored him; instead, the officer claimed he heard another person coming out of the house and was “forced to take action.”
Todd also said his fellow officers were not reacting and he didn’t have time to instruct them to act.
When paramedics arrived they immediately recognized Dumas’s condition was “very serious” and he was taken to hospital in life-threatening condition, according to the report.
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.
There were multiple reasons ASIRT found Todd’s behaviour inappropriate.
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.
ASIRT said the threat of a knife is somewhat proportional to a kick to the head, but it’s important to note that in this situation Dumas was close to the officer because he had followed directions to crawl there.
“(Todd) brought (Dumas) to that location, yet (Todd) used (Dumas’s) location to justify his immediate and serious use of force,” said ASIRT.
The watchdog also called into question whether the kick was necessary to protect the police officers.
“It is difficult to see how the life of any officer was threatened by the 90-pound (Dumas), who was laying on the ground and covered by multiple officers with a range of weapons and a police dog,” said the report.
ASIRT called the Todd’s actions hasty and violent, adding the officers beside him had less-lethal weapons while Todd had a gun, and that Todd should have let the other officers intervene instead of kicking Dumas in the head.
ASIRT said there were reasonable grounds that Todd committed a criminal offence and referred the matter to the Crown prosecutor for an opinion on whether charges should be laid.
The Alberta Crown Prosecutor Service (ACPS) said it did not recommend charges against Todd but the ASIRT report did not say why.
EPS said Todd is on leave with pay and its professional standards board is now investigating.
ASIRT said even though no charges were recommended, the officer’s actions were inappropriate.
“(The subject officer’s conduct) showed a shocking lack of judgement and disregard for the life of (Dumas).”
“The (subject officer) was standing above a 90-pound 18-year-old and pointing a firearm at him with two other officers nearby offering assistance,” said ASIRT.
“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 AP as a first resort cannot be supported.”
“The public expects significantly better from a police officer.”
‘A cover-up’: Dumas lawyer shocked by ACPS decision
Heather Steinke-Attia, legal counsel for the Dumas family, called the decision shocking and incomprehensible.
She said though ACPS doesn’t have to provide a reason for their decision, there is an obvious need for the public to know why charges won’t be pursued by Crown prosecutors.
“I feel confident in saying even the ASIRT team did not expect this result, given the strength of the evidence and their very capable investigation,” said Steinke-Attia, pointing to the existence of an impartial witness, a neighbour who saw the incident.
“I would even go so far as to say the prosecution service is involved in a coverup and is exhibiting a bias towards police officers.”
Steinke-Attia added neither of the brothers had a criminal record nor any weapons on them and that she still doesn’t know the reason they were arrested.
Steinke-Attia said the situation has continued to traumatize the Dumas family, especially since Blair died by suicide in March 2022.
“Now to receive the news that, despite all that they have been through and despite all the evidence to support criminal charges, the prosecution service is simply refusing to do what’s right, without explanation — they’re devastated,” she said.
Dumas is a quiet man, Steinke-Attia said, who is trying to move on from that night. He has a young child and a good relationship with the mother.
Steinke-Attia said the ASIRT report will now go to police chief Dale McFee for investigation under the Police Act. She says the other unidentified officers there that night lied about the circumstances to medical personnel and will be investigated for misconduct.
Criminologist ‘flabbergasted’ by ACPS decision
Temitope Oriola, a professor of criminology at the University of Alberta, said he was flabbergasted that the ACPS decided not to proceed with charges.
“I believe that the other Crown prosecution service is underestimating the significance of the kind of message that this sends to the broader public and the rank and file of the police,” he said.
“This has the capacity to erode the trust, the confidence and the legitimacy of the police in the minds of members of the public.”
Oriola said police officers may take the decision to mean they won’t face any consequences for their actions.
Though he agrees the public should know how the ACPS came to its decision, Oriola said he wouldn’t go so far as to say that the Crown is covering something up.
Oriola said he doubts Todd’s fitness as a police officer.
“The next act of excessive use of force is around the corner if this individual does get away with this,” he said, adding evidence shows only six per cent of police officers are responsible for over 60 per cent of excessive use of force incidents.
“I’m not holding responsible the vast majority of our officers who do an absolutely amazing job on a daily basis, but my worry is about the protective ring that we tend to form around the officers in cases like this.”