Pacey Dumas and his lawyer seek answers about Crown's decision not to criminally prosecute the police officer who kicked him in the head. Credit: Tingey Injury Law Firm, Unsplash
A warning: this story touches briefly on suicide.
Questions persist about the Alberta Crown Prosecution Service’s decision not to prosecute an Edmonton police officer who kicked a teen in the head.
In December 2020, Edmonton police responded to a call about a fight and a man with a knife. That led officers to eighteen-year-old Pacey Dumas’ house, where he and his brother were called outside.
The brothers were then told to get on their hands and knees and crawl toward three police, one holding a carbine rifle.
A photo gallery depicting Pacey Dumas’ injuries from his encounter with an Edmonton police officer in December 2020
Photos supplied by Heather Steinke-Attia, Dumas’ lawyer.
According to witnesses, Edmonton Police Service (EPS) Constable Ben Todd yelled at Dumas to stop moving while he was on his stomach with his hands behind his back and warned him to take his hands out of his pockets. The officer then moved in and kicked Dumas in the face “as if he were kicking a soccer ball,” said one neighbour who witnessed the event.
The kick, said one of the officers, landed with a thud, leaving Dumas unconscious and bleeding. Police then handcuffed the Indigenous teen and called for medical assistance.
Dumas was never charged.
Police watchdog raises questions
According to an investigative report done by the Alberta Serious Incident Response Team (ASIRT), the officers did not find the reported knife that brought them to Dumas’ house.
Dumas was rushed to the hospital in a life-threatening condition and taken into surgery to remove a significant portion of his skull to relieve pressure on the brain.
Dumas was diagnosed with “critical intracranial injuries, with subdural hemorrhage and midline shift.” He spent nine days in intensive care with long-lasting, if not permanent, damage.
Crown declines to pursue prosecution
The Alberta Crown Prosecution Service (ACPS) declined to charge Const. Todd, despite a report from ASIRT–Alberta’s police watchdog–that concluded the officer displayed a “shocking lack of judgment and disregard” for a teen’s life.
“In this case, an ACPS prosecutor reviewed the investigation and surrounding circumstances and concluded that the charges did not meet our standard for prosecution,” said Ball in a statement.
Senior defence lawyer questions decision not to prosecute
Tom Engel, who chairs Alberta’s Criminal Trial Lawyers Association’s policing committee, says that in ordinary cases, the police will investigate a potential crime to determine if a criminal prosecution is warranted. Once they file a charge, the Crown decides whether to prosecute.
“They send the ASIRT report with that opinion and ask ACPS whether they will prosecute, and if… there’s a reasonable likelihood of conviction, and is it in the public interest to prosecute, if either condition is not met, they will not prosecute,” said Engel.
Engel wonders why Alberta’s Crown Prosecution Service declined to prosecute Todd.
“The evidence was overwhelming, and in my opinion, you don’t have to be a lawyer or police officer to figure out that the prosecution service was simply perverse,” said Engel.
Technically, ASIRT can lay charges on its own, but it usually does so only if the Crown Prosecution Service agrees on a reasonable likelihood of conviction.
Kick to head raises bigger questions
The case continues to haunt Dumas’ life.
It also raises serious questions about the Edmonton Police’s use of force, relationships with Indigenous peoples–and how Alberta’s Crown Prosecution Service decides to prosecute crimes.
Heather Steinke-Attia, Dumas’ lawyer, has been fighting for justice for her client for years. She even tried prosecuting Todd independently of the Crown, a rare legal tactic.
“The Alberta Crown Prosecution Service are paid by taxpayer dollars, acting in the best interest of citizens for our communities–they have a substantial amount of power and have the ability to block access to justice or allow justice to occur in an open and public court forum,” Steinke-Attia said.
Dumas’ lawyer says she can’t speak to what goes on internally. However, when some people have no other avenues or the financial means to file a civil lawsuit, ACPS and the police make it difficult to get information.
“I believe it would be hard to find any evidence in a trial that would justify officer Ben Todd’s actions. At the very least, the case should go to court, where evidence and witnesses can be examined in an unbiased way. This also gives officers a chance to share their side of the story,” said Steinke-Attia.
Pacey Dumas lives with an indentation in his skull, an injury from his encounter with police in December 2020. PHOTO SUPPLIED BY: HEATHER STEINKE-ATTIA
When Steinke-Attia filed the judicial review, she noted that the prosecutor who signed off on the stay of proceedings is married to an EPS sergeant who trained all officers in use-of-force training at that time, including Todd.
“My argument was not that I’m alleging actual bias. It presents an appearance of bias. It’s hard to believe a prosecutor hasn’t been influenced by constant discussions on use-of-force and street incidents, leading to at least some unintended bias in their decision-making,” said Steinke-Attia
Ultimately, that judicial review failed. Earlier this month, Court of King’s Bench Justice Michael Kraus denied Steinke-Attia’s request to review the Crown’s decision not to prosecute Todd.
Steinke-Attia says countless similar cases of prosecutors declining to pursue a case also beg an explanation, calling Dumas’ case one of the worst scenarios.
“These cases show the need for transparency and action against excessive force and misconduct. When senior officials refuse to act, it sends the wrong message to other officers–we need to build trust in the police,” said Steinke-Attia.
Dumas and his mother, Irene, struggle every day, says their lawyer, with the consequences of his severe head injury.
Dumas’ brother, Blair, who witnessed Todd deliver a “football style” kick to Pacey’s head outside their west Edmonton home, killed himself 15 months after the violent arrest.
The Edmonton Police Service confirmed to the Calgary Journal that Const. Todd remains on leave with pay.
The force’s professional standards branch continues to investigate.
An EPS spokesperson says the leave is “unrelated to the investigation.”
Police watchdog’s standard for charges
ASIRT’s standard for initiating a charge is less stringent. The agency’s executive director must have merely “reasonable grounds” to believe that an officer has committed an offence.
From 2018 to 2024, ASIRT investigated 438 cases. Only six per cent—28 cases—resulted in police officers being charged, and 13 of those cases ended in convictions, according to ASIRT.
But how can the public ever know if a prosecution case “couldn’t be proven beyond a reasonable doubt in court”?
“There is no legal reason or practice for an explanation of how or who made the decision not to prosecute,” said Engel. However, in my opinion, there is considerable public interest in how decisions are made charging and prosecuting police officers, particularly those involved in serious injuries or fatalities.”
“The public interest has to be the trump card, and that the public interest demands the Crown be transparent–it was not considered here,” said Engel. “Another significant factor is that they do not want to explain because they can be attacked on it.”
Alberta’s prosecution guidelines guide the Crown on exercising their “discretion” when deciding whether to proceed or stop a prosecution and the “public interest factors” that may be considered in that assessment.
“The public interest has to be the trump card.”
Tom Engel, Chair of the Policing Committee of Alberta’s Criminal Trial Lawyers Association
The guidelines warn that prosecutions lacking solid legal or factual grounds or not serving the public can violate the protection guidelines and cause citizens unnecessary worry and embarrassment. On the other hand, not pursuing a strong case can undermine public confidence. The guideline emphasizes that “considerable care must be taken in each case to ensure that the best possible decision is made.”
While it’s challenging to outline all public interest factors in the prosecution’s decision-making, key factors include the seriousness of the conduct, whether “the victim was vulnerable with particular attention given to the circumstances of Indigenous victims,” and whether “the accused is likely to continue or repeat the conduct absent a prosecution.”
It’s up to the ACPS to decide whether they will prosecute based on two questions:
“Is the evidence sufficient to justify the commencement or continuation of proceedings?”
“If it is, is the commencement or continuation of the prosecution in the public interest?”
Reviewing the Crown’s decision
So why would the Crown decide it couldn’t prove a case beyond a reasonable doubt against Todd despite ASIRT’s conclusion that charges were warranted?
“Well, that’s the question, isn’t it?” said Engel.
Justice Minister Mickey Amery initiated a review of the policies and practices of ASIRT and the ACPS. This comes after recent instances like the Dumas case, where the Crown did not pursue prosecution even though ASIRT investigations found reasonable grounds that the police had committed an offence.
Former Court of Appeal of Alberta Justice Peter Martin started the review last November. Once completed, the minister of justice, public safety and emergency services will review Martin’s report.
“The justice minister is reacting to public pressure…”
Tom Engel Chair of the Policing Committee of Alberta’s Criminal Trial Lawyers Association
Engel said the review is the first of its kind, very different from the previous ones, and comes at a time when two factors are being considered.
“There are several possible explanations as to why there is a review. One would be that the justice minister is reacting to public pressure, and the other explanation is that Minister Amery decided that it is the right thing to do regardless of public pressure,” said Engel.
Engel is optimistic about Amery’s selection to conduct the review and hopes the report will be made public.
Using Alberta’s Freedom of Information laws, the Calgary Journal requested internal records about the Crown’s decision not to prosecute Todd.
In the government’s February letter denying the request, a justice department official wrote that the “issue remains under active prosecution.”
Alberta’s Freedom of Information and Protection of Privacy Act allows the government to withhold information about criminal cases if the “prosecution has not been completed.”
In an email to the Calgary Journal, Alberta’s Crown Prosecution Service said the Criminal Code “authorizes police officers to use as much force as is necessary so long as it is not excessive.”
The spokesperson also stressed that convicting a police officer is a “very high burden to meet.”
The final verdict on Crown’s decision
The decision to prosecute ultimately boils down to a judgment call, say legal analysts.
Crown prosecutors insist they apply a more rigorous legal standard than ASIRT when evaluating cases.
Legal analysts say this suggests that the prosecutors involved in the Dumas case likely felt they couldn’t win the case in an Edmonton courtroom.
Prosecutors are notoriously tight-lipped about how they decide who and when to prosecute.
Admittedly, the only way to know if a case can be proven beyond a reasonable doubt is to prosecute it and find out what a judge or jury decides in an actual courtroom. As a result, it’s hard to know definitively if the Crown prosecution’s claim that it couldn’t win a case is accurate or misleading.
Steinke-Attia and her client continue to pursue a civil lawsuit against the Edmonton Police Service.
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