Experts say it has never succeeded before in Alberta — but a young man from Little Red River Cree Nation is unwilling to back down in his efforts to privately prosecute the police officer who left him with life-altering injuries.
After an investigation, the Alberta Serious Incident Response Team (ASIRT) asked the Alberta Crown Prosecution Service (ACPS) to consider laying excessive force charges against Const. Ben Todd in April but the Crown declined to prosecute.
On Monday, Pacey Dumas signalled he's not giving up.
Nearly three years after Todd's kick to his head resulted in a serious brain injury, Dumas took the first step aimed at a private prosecution.
Alongside his mom and his lawyer, Dumas swore what's called a "private information" alleging Todd committed aggravated assault, in the hopes of putting the matter before an Alberta Court of Justice judge.
"We've been through so much but that's not holding us back," Dumas, 21, said this week in an interview with CBC News.
"If he got kicked in the head, they would have charged that person."
Private prosecutions are rarely attempted in Canada and have never succeeded in Alberta, according to Edmonton-based civil rights lawyer Tom Engel.
In decades of challenging police brutality, Engel has only initiated private prosecutions twice. Both were unsuccessful.
One of those times occurred in 2006 when the ACPS declined to charge Edmonton police Sgt. Bruce Edwards, who repeatedly shot and nearly killed Engel's client Kirk Steele. Steele had stabbed the officer's police dog.
So, why bother?
"The point might be to make the point — that there is enough evidence to lay a charge," Engel said.
"That Crown will have a name. Not like in the [April] case of Dumas, where that Crown prosecutor remained nameless. At least there will be a name for that prosecutor, and that prosecutor will be responsible for having terminated the prosecution."
The Crown prosecutor may also have a different opinion than the one who declined to prosecute Todd, Engel added.
Edmonton defence lawyer Heather Steinke-Attia displays a photo of her client, Pacey Dumas, taken shortly after he was injured during an arrest. (Nathan Gross/CBC)
Dumas is set to go before a judge on Oct. 13. The pre-enquete hearing could be compared to a preliminary trial,except it's not open to the public. The Crown can cross-examine witnesses and make recommendations.
If the judge decides there is enough evidence to proceed to trial, the accused will be charged. At that point, the Crown prosecutor has the right to take over the case, which can go one of two ways.
"That choice will be either to take over the prosecution if they believe it's in the public interest and that there's a reasonable prospect of conviction," said Steven Penney, a law professor at the University of Alberta.
"Or probably, more commonly, the Crown prosecutor will withdraw the charges, in which case everything is ended and the only possibility of reinitiating it is if there is significant new evidence that comes to light."
New evidence could include the full ASIRT report, which Dumas' lawyer, Heather Steinke-Attia, is in the process of obtaining.
The summarized report, available online, found reasonable grounds to lay charges against Todd, concluding "it was clearly a use of force that was intended or likely to cause death or grievous bodily harm."
A case like this cries out for explanation. - Heather Steinke-Attia
On Dec. 9, 2020, Todd kicked Dumas outside his family home in Edmonton's Callingwood South neighbourhood during an arrest, as Dumas crawled on his hands and knees.
Todd said he repeatedly asked Dumas to show his hands after reaching for his pockets but he did not comply.
"In choosing to direct a high-force kick as a first resort at a person's head as they lay on the ground, completely surrounded by multiple officers and weapons — I'm hard-pressed to imagine there's any use-of-force expert out there that could justify that," said Steinke-Attia, who once represented Edmonton police and trained in use-of-force.
"A case like this cries out for explanation."
Dumas, who has no criminal record, was never charged.
A spokesperson for Alberta Justice said the Attorney General of Alberta has the right and responsibility to supervise provincial criminal prosecutions, and the matter will be assessed.
Police did not provide comment apart from confirming that Todd is on leave with pay "unrelated to this investigation."
His mother said there is another reason the family is not backing down. They want justice for Dumas's brother, who witnessed the assault.
The family said the once-happy Blair Dumas took his life a year ago after a downward spiral set off by the inability to protect his younger brother from Todd.
Dumas acknowledged that the path he has chosen isn't an easy one, but he hopes it inspires other young Indigenous people
"You've just got to keep on fighting, and it doesn't matter how you're feeling. If you wake up feeling mad or sad, don't let it get the best of you. Got to keep on going."