Edmonton

Edmonton constable off patrol years after violent arrests; case fuels calls for police reform

An Edmonton constable accused of using excessive force and racial slurs during a 2015 arrest is no longer on patrol as new details about the case heighten calls for police reform.

EPS says the transfer is not related to disciplinary action

Const. Nathan Downing is accused of using excessive force in the 2015 arrest of Nasser El Hallak. (Edmonton Police Commission/Submitted by Nasser El Hallak)

An Edmonton constable accused of using excessive force and racial slurs during a 2015 arrest is no longer on patrol as new details about the case heighten calls for police reform.

Until last month, Const. Nathan Downing remained on patrol — apart from a brief pre-approved leave — after being charged with unlawful or unnecessary exercise of authority under the Police Act in 2018.

A disciplinary hearing in the case, during which he faced allegations that he had fractured a man's face and used Islamophobic slurs, was abruptly adjourned last year when a witness testified that Downing had arrested her a week earlier.

An Edmonton Police Service spokesperson confirmed in an email that as of May, Downing is no longer in a public-facing role.

"This move from patrol is not related to a promotion or any disciplinary action," EPS spokesperson Cheryl Sheppard said, adding that there was a recent shuffle within the organization.

Downing was previously found guilty of unlawful use of force after hitting a fleeing suspect with his police van in 2013. In that case, Downing was placed in a non-operational role for 18 months and received remedial training, Sheppard said.

No standard of practice currently exists for patrol officers accused of excessive force or racial profiling. All complaints are investigated internally. 

"Each case of officer discipline is left on its individual merit and the circumstances around it," police Chief Dale McFee said Thursday when asked if officers facing these kind of allegations should be removed from patrol.

But critics say that needs to change. 

Demand for greater accountability echoes the majority of speakers heard so far at a public hearing into the future of policing that resumes Monday. Edmonton is one of many cities across North America reckoning with calls to end systemic racism against Black communities in the wake of the death of George Floyd, who died while a Minneapolis police officer kneeled on his neck last month.

A punishment has a deterrent effect on others who might be like minded- Tom Engel, Criminal Trial Lawyers' Association

"Police chiefs over the years in Edmonton have not used that power to suspend with or without pay, and it sends a very bad message to the community that these officers are still out patrolling," said Tom Engel, chair of the Criminal Trial Lawyers' Association (CTLA) policing committee.

"It harms the reputation of the Edmonton police service that they don't take action like that."

The CTLA is calling for sweeping reforms to address systemic issues in policing.

"I would urge police services in Alberta to use this power," Engel said. "That travels like wildfire through the police service and … a punishment has a deterrent effect on others who might be like minded," Engel said.

Allegations of assault, Islamophobic language

Downing's 2018 use-of-force charge stems from the March 2015 early morning arrest of Nasser El Hallak.

 El Hallak says Downing punched him repeatedly and called him the n-word and a "f--king Muslim." Downing, however, says he delivered one punch during a struggle to subdue El Hallak. 

Charges of impaired driving and obstructing a police officer were withdrawn.

Along with the use of force charge, Downing and his partner that night — Const. Nicholas Talvio — were charged with discreditable conduct and deceit for allegedly submitting false statements about the arrest, which they deny.

Lawyer Mustafa Farooq, president of the National Council of Canadian Muslims, says the case shows why all officers facing allegations of excessive force or racial profiling must be pulled off patrol until the complaint has been independently adjudicated.

"We don't think a person who's facing allegations of this sort, and who has a history of excessive force, should be on the streets with a gun," Farooq said. "The position of power is simply too great.

"The fact that Downing was on the street allowed him to do things like arrest a witness in his own disciplinary hearing."

Arrest of witness not targeted, police say

In May 2019, police adjourned Downing's disciplinary hearing to investigate after a witness, Crystal Fox, testified that he arrested and charged her a week earlier. Police recently provided details with CBC about the investigation that cleared Downing.

On May 14, 2019 at 2:30 a.m., Downing noticed a vehicle with tinted windows parked in a stall for drivers with disabilities, EPS said. He checked the licence plate which was registered to Fox.

But after an investigation that included multiple interviews, audits into police databases and a review of GPS coordinates of Downing's vehicle, McFee concluded a disciplinary hearing would find Downing not guilty.

"It was determined that Ms. Fox's license plate was only queried on this one occasion and the traffic stop conducted on Ms. Fox was not targeted," wrote EPS spokesperson Cheryl Sheppard.

Fox's charge of driving with a suspended licence was withdrawn on Feb. 3. 

An internal investigation cleared Downing of wrongdoing after arresting Crystal Fox a week before she testified against him. (Andrea Huncar/CBC)

'The officer got irate'

That same day Edmonton police received another complaint about Downing for his alleged conduct outside a courtroom after a Crown prosecutor told him Fox's charge would not be prosecuted.

"The officer got irate," wrote criminal defence lawyer Robert LaValley in a witness complaint submitted to the professional standards branch and corroborated by another witness who spoke to CBC.

"The officer began to raise his voice and demanded to know right now why it was not being prosecuted."

On Monday, June 22, EPS told CBC the matter has been resolved.

"As of April 15, 2020, the matter was informally resolved between Const. Downing and the Crown," Sheppard said.

As the province moves to update the Police Act, McFee, the union and CTLA have repeatedly said officer complaints should be investigated by an independent body.

To suspend a member without pay without a finding of guilt is incorrect — full stop.- Sgt. Michael Elliott, police union

In a letter on June 17 to union members,  the Edmonton Police Association spoke out against the suspension without pay of officers under investigation.

"To suspend a member without pay without a finding of guilt is incorrect — full stop," wrote union president Sgt. Michael Elliott.  "There have been many other members who have been in similar circumstance and have not been suspended without pay."

His comments follow the removal from duty without pay of Const. Michael Partington who was criminally charged for the violent arrest of an Indigenous man in August 2019.

Const. Mike Roblin remains on patrol while under investigation for his May 9 Instagram post showing two officers posing with a shirtless, handcuffed man who they arrested.

Previously found guilty of assault causing bodily harm, Roblin was later granted a conditional discharge but pleaded guilty to discreditable conduct. 

In another high-profile case of alleged racial profiling, the former owner of a shisha lounge filed a formal complaint in 2017 against members of the hospitality policing unit. Mulugeta Tesfay has successfully fought a criminal charge and dozens of bylaw tickets issued by authorities since he made the complaint.  The internal investigation still hasn't been completed.

Downing's hearing is scheduled to resume in September.

ABOUT THE AUTHOR

Andrea Huncar

Reporter

Andrea Huncar reports on human rights and justice. Contact her in confidence at andrea.huncar@cbc.ca

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