Lawyer raises potential of 'bias' in high-profile Edmonton police disciplinary decision

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A recent disciplinary decision involving two Edmonton city police officers highlights problems with Alberta’s system for holding law enforcement accountable, a local lawyer says.

Kate Engel represents Nasser El Hallak, who claims he was beaten and called racial slurs by Const. Nathan Downing during an arrest in 2015.

In a decision released Wednesday, Downing and his partner were acquitted of misconduct charges by Thomas Grue, a retired Edmonton Police Service (EPS) superintendent.

Grue concluded that prosecutors had not proven Downing uttered racial slurs at El-Hallak, saying that in his experience, it was “unthinkable” for an EPS officer to say such things.

Engel said the public should be “extremely troubled” by that statement.

“Decisions such as these highlight the problems with having EPS officers, serving or retired, preside over disciplinary hearings into allegations of misconduct by EPS officers,” she said in an emailed statement.

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Downing arrested El Hallak for refusing a breathalyzer and obstructing a police officer early March 25, 2015, outside El Hallak’s home in Abbottsfield.

El Hallak alleges Downing called him a “f–ing n—” and a “f–ing Muslim” before tackling him and punching him following a foot chase. He claims Downing later punched him repeatedly in the head while he was handcuffed in a police cruiser.

Downing denied uttering the slurs, saying there was barely time to shout “stop, police,” before the foot chase began. He also denied hitting El Hallak besides a single punch during the chase.

The charges against El Hallak were eventually withdrawn.

In his 131-page decision, Grue said he was dealing with such radically different stories that an observer could question “whether these witnesses even participated in or witnessed the same event.”

Overall, he found the officers’ version of events more credible, concluding that it aligned more logically with the limited third-party evidence in the case.

He called El Hallak’s evidence “an admixture of fact, pretense, faulty recollection, confabulation, and misconception.”

Grue ultimately found that it was unlikely Downing pummeled El Hallak in the police cruiser, and that what bystanders saw was actually Downing attaching a “spit mask” to El Hallak’s face.

As for the alleged slurs, Grue said the “weight of the evidence … strongly favours the officers’ narrative.”

In particular, Grue highlighted evidence from Const. Nicholas Talvio, who said he would have remembered his partner using “racial epithets” at El Hallak “because he had never heard a police officer use such slurs.”

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Edmonton Police Const. Nathan Downing, seen in a 2015 file photo.
Edmonton Police Const. Nathan Downing, seen in a 2015 file photo. Photo by Trevor Robb /Trevor Robb/Edmonton Sun

“His evidence exhibited both an air of reality and the ring of truth,” Grue wrote. “As a person who started their policing career in the ’70s, it has been my experience that it has always been considered unthinkable in EPS culture to direct any kind of racialized language towards a member of the public. If an officer did so, it would certainly have been noticed and remembered.”

Engel, who is representing El Hallak in a civil suit against EPS, said that statement raises a “reasonable apprehension of bias in favour of the officers.”

“If Supt. Grue believes it is unthinkable that this would ever happen then he is out of touch with reality and this borders on a denial of systemic racism with the EPS,” she said. “This statement tainted Supt. Grue’s analysis as to whether Const. Downing uttered the racist statements to Mr. El Hallak.”

She added: “The public should be extremely troubled that a presiding officer (Grue) expressed such strong disbelief at the prospect of a police officer making racist statements towards a member of the public.”

Engel said it is too early to say whether her client will appeal the decision to the Law Enforcement Review Board, an arm’s length civilian body.

The Alberta government is currently reviewing the Police Act, which governs police officer discipline in the province. Police Act complaints are typically investigated and prosecuted by internal professional standards units and presided over by ex-police officers or judges.

jwakefield@postmedia.com

twitter.com/jonnywakefield

Edmonton Police Service Disciplinary decision March 22, 2021, Constable Nathan Downing and Constable Nichol… by Jonny Wakefield on Scribd

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