The Law Enforcement Review Board (LERB) has upheld the March 2021 acquittal of an Edmonton police officer accused of using excessive force and racial slurs during an arrest.
In a February 2 decision, the board dismissed an appeal by Nasser El Hallak, who was arrested by Const. Nathan Downing in March 2015.
In his appeal, El Hallak alleged that Chairman Thomas Grue’s bias, improper credibility ratings and a lack of professional judgment marred the proceedings and resulted in an improper decision.
The board found otherwise.
“The Board has found neither a reasonable concern for bias nor a failure by the presenting officer to exercise professional judgment,” read the decision by Chairwoman Victoria Foster and Board Members Glen Buick and Usman Mahmood.
“Moreover, the board considers the chairman’s decision to be reasonable, therefore the appeal is dismissed.”
Different accounts of the arrest
On March 25, 2015, El Hallak was arrested outside his East Edmonton home by Downing and his former partner Const. Nicholas Talvio.
El Hallak, who suffered facial fractures upon arrest, accused Downing of repeatedly hitting him and calling him a f–king n—-r and a f–king Muslim.
Downing said he delivered a closed-fist punch to the head to subdue a fleeing El Hallak and never used racial slurs – a report supported by Talvio.
Under the Police Act, Downing faced six charges, including unlawful or unnecessary exercise of power. Talvio was charged with allegedly failing to intervene or reporting the inappropriate use of force.
Both police officers were accused of fraud for allegedly making false notes and statements. After a hearing full of stops and starts spanning nearly two years, the presiding officer acquitted the officers of all charges.
Grue noted that the evidence raised questions about El Hallak’s credibility and favored the officials’ version of events.
“As a person who began his police career in the ’70s, it has been my experience that in EPS culture it has always been considered unthinkable to direct any sort of racist language at a member of the public,” Grue wrote in his Decision.
Last October, El Hallak appealed the decision, arguing that Grue’s decision was “irreparably tainted” with bias.
Kate Engel, El Hallak’s attorney, said it was inappropriate for Grue to base his own subjective experience on whether Downing would use a racial slur while ignoring overt examples of racism displayed by Edmonton police.
“Expects him to bring his experience to the table”
In last week’s decision, the panel said a chairperson is “entitled and expected to bring his or her experience of policing” to the disciplinary process.
“The Board does not agree that the Chairman has stated that there is not, and could not be, a culture of racism within a police service.
“The Chamber notes that the Presiding Officer considered the evidence provided by the complainant and the respondent officers in order to arrive at a credibility and reliability assessment as to what comments were or were not made to the complainant.”
Another allegation dismissed by the board was that Grue showed a lack of professional judgment by not asking Downing about a previous record of unlawful exercise of powers, while questioning El Hallak about a previous conviction for burglary and theft.
Engel said this resulted in a “one-sided picture of the character and credibility of defense witnesses versus prosecution witnesses”.
The board said the request to include Downing’s previous disciplinary history for hitting a fleeing suspect with a police car had previously been dealt with.
“The board cannot know why the presenting officer made his decision not to include Downing’s past disciplinary history and there may be plausible reasons for not doing so,” the board wrote.
Engel said in a statement on Wednesday the decision was disappointing. She said there was a “lack of understandable, justifiable and transparent reasoning” from the board addressing allegations that Grue had relied on his own biased opinions about racism within EPS.
“In recent years from about 2020, our office, which has dealt with multiple complaints, has noticed a trend in decisions by the LERB dismissing citizen complaints without proper reason.”
Engel said there are grounds for further appeal to a higher court, but the cost could be financially prohibitive.
The Edmonton Police Department, as well as the officers and their attorney, declined to comment.
