Alberta judge denies bias in trial involving alleged obstruction and police misconduct

An Alberta provincial judge - whose two sons are police officers - declined to recuse herself from a case involving allegations of police misconduct.

Judge Donna Valgardson is the mother of two sons who are Edmonton police officers

Defence lawyer Tom Engel argued that the judge must recuse herself because of a perception of bias. (Nathan Gross/CBC)

An Alberta provincial judge — whose two sons are police officers — declined to step aside from a case involving allegations of obstruction of a peace officer and police misconduct.

"I find that no reasonable apprehension of bias has been established in this instance," Judge Donna Valgardson ruled Tuesday morning after reserving her decision overnight. "The application for recusal is unwarranted and it is dismissed."

A day earlier, defence lawyer Tom Engel urged Valgardson to step aside in the trial of Moe Tesfay who is being tried on a charge of obstruction.

"This case involves an attack on the conduct and credibility of police officers," Engel told Valgardson. "You must find a reasonable apprehension of bias if you continue to sit on this particular case and you ought to recuse yourself."

But crown prosecutor Vernon Eichhorn said there was no indication that Valgardson's sons would be linked to this case in any way.

Engel is representing Tesfay, the owner of Nyala Lounge, who has pleaded not guilty to making a false statement to police in an incident at the bar on Jan. 21, 2018 involving a gun. 

Ongoing battle

This week's trial is part of a years-long battle after Tesfay filed a complaint that he, his customers and other African-Canadian business owners are harassed and racially profiled by some police officers.

The officers, who deny the allegations, are members of the city's public safety compliance team — a unit that has repeatedly tried to shut down Nyala.

An appeal committee ruled in February that although Nyala had breached a number of licensing conditions, the lounge could reopen because there was no evidence public safety had been compromised. 

While Tesfay has been found guilty on a handful of infractions such as overcrowding, he has successfully fought dozens of bylaw tickets and two criminal tobacco-related charges.

The criminal charge now before the court was used by the compliance unit to justify Nyala's closure.

The case ended up in Valgardson's courtroom Monday after another judge, Lloyd Malin, recused himself because he had signed a warrant authorizing a search of the bar in the January incident.

It would be surprising if neither of your sons worked with some of these involved officers- Lawyer Tom Engel

Engel argued that a reasonable person would probably conclude there could be bias if Valgardson didn't disqualify herself.

He noted that Tesfay's complaints against some officers likely involved the EPS legal advising section where Valgardson's son worked as a sergeant. 

Engel said he may cross examine some officers about potential bias and up to 19 officers are connected to the case.

"It would be surprising if neither of your sons worked with some of these involved officers," Engel said.

Tom Engel's client Moe Tesfay repeatedly complained that large teams of police officers frequently inspected his bar. (Nyala Lounge)

Another issue, said Engel, is that his arguments would reveal systemic problems in the police service. If Tesfay is found guilty, Engel told court he will argue for a stay based on his client's alleged mistreatment during his arrest and detainment.

"One would expect that if it is systemic, then one or both of your sons would engage in the same systemic conduct and a decision by you in favour of Mr. Tesfay could be used in a case involving one or both of your sons," Engel said.

But Eichhorn said there was no evidence Valgardson would not be impartial and characterized the argument that litigation would affect her sons as speculative. On Tuesday, the judge agreed.

"This all in my view is too remote to give rise to a submission that I could not be impartial," said Valgardson. "My judge's oath requires me to follow the law."

She said she was not aware until informed by Engel, that he had once made a complaint against some police officers that included her son.

The trial is now underway.


Andrea Huncar


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