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Appeal dismissed in misconduct acquittal of Edmonton police officer

Const. Nathan Downing was exonerated in March 2021 of using excessive force and racial slurs when he arrested Nasser El Hallak. (Edmonton Police Commission/Submitted by Nasser El Hallak - image credit)
Const. Nathan Downing was exonerated in March 2021 of using excessive force and racial slurs when he arrested Nasser El Hallak. (Edmonton Police Commission/Submitted by Nasser El Hallak - image credit)

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 Feb 2. decision, the board dismissed an appeal filed by Nasser El Hallak, who was arrested by Const. Nathan Downing in March 2015.

In his appeal, El Hallak alleged presiding officer Thomas Grue's bias, unreasonable credibility assessments, and a lack of professional judgment compromised the proceedings and resulted in an unreasonable decision.

The board found otherwise.

"The board has made no finding of a reasonable apprehension of bias nor a failure by the presenting officer to exercise professional judgment," reads the decision from presiding officer Victoria Foster and board members Glen Buick and Usman Mahmood.

"Further, the board finds the presiding officer's decision was reasonable, thus the appeal is dismissed."

Differing accounts of 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 sustained facial fractures during the arrest, accused Downing of punching him repeatedly and calling him a f--king n----r and a f--king Muslim.

Downing said he delivered one closed-fist punch to the head to subdue a fleeing El Hallak and never used racial slurs — an account supported by Talvio.

Under the Police Act, Downing faced six charges including unlawful or unnecessary exercise of authority. Talvio was charged for allegedly failing to intervene or report the inappropriate use of force.

Both constables were charged with deceit for allegedly providing false notes and statements. After a hearing peppered with stops and starts over nearly two years, the presiding officer cleared the officers on all charges.

Grue found that the evidence raised questions about El Hallak's credibility and favoured the officers' version of events.

"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," Grue wrote in his decision.

Last October, El Hallak appealed the decision, arguing Grue's decision was "irreparably tainted" by bias.

Kate Engel, El Hallak's lawyer, said it was inappropriate for Grue to decide whether Downing used a racial slur based on his own subjective experience while ignoring overt examples of racism exhibited by the Edmonton Police Service.

'Expected to bring his experience'

In last week's decision, the panel said a presiding officer is "entitled and expected to bring his experience in policing" to the disciplinary process.

"The board does not agree that the presiding officer stated there was not or could never be a culture of racism within a police service.

"The board finds the presiding officer considered the evidence of the appellant and the respondent officers in reaching a credibility and reliability assessment of what comments were or were not made towards the appellant."

Another assertion rejected by the board was that Grue showed a lack of professional judgment by not asking Downing about a prior record of unlawful exercise of authority while questioning El Hallak about a previous conviction of break and enter and theft.

Engel said that resulted in a "one-sided picture of the character and credibility of the defence witnesses versus the prosecution witnesses."

The board said the request to include Downing's prior disciplinary history for hitting a fleeing suspect with a police van had been previously dealt with.

"The board cannot know why the presenting officer made his decision not to include Downing's prior disciplinary history and there may be plausible reasons for not doing so," the board wrote.

Engel said the decision was disappointing in a Wednesday statement. She said there was a "lack of intelligible, justifiable, and transparent reasons" from the board addressing the assertion that Grue had relied on his own biased opinions about racism within EPS.

"In recent years beginning around 2020, our office, which has dealt with several appeals, has noticed a trend in decisions from the LERB dismissing citizen appeals without adequate reasons."

Engel said there are grounds for another appeal to a higher court but costs could be financially prohibitive.

Edmonton police as well as the officers and their lawyer declined to comment.