Edmonton man appealing police officer's misconduct acquittal
Nasser El Hallak says the presiding officer's bias influenced his March 2021 decision
An Edmonton man has launched an appeal in the case of police Const. Nathan Downing who was acquitted of using excessive force and racial slurs during his 2015 arrest.
On Thursday, the Law Enforcement Review Board heard Nasser El Hallak's appeal in the March 2021 decision written by presiding officer Thomas Grue.
The nine grounds of appeal include "the reasonable apprehension of bias" when assessing witness credibility, as well as relying on "preconceived notions and opinions."
On March 25, 2015, El Hallak's was arrested by Edmonton police. Downing and his former partner made the arrest.
El Hallak accuses Downing of punching him repeatedly during the arrest, and calling him a f--king n----r and a f--king Muslim.
Downing said he delivered one closed-fist punch to the right side of El Hallak's head to subdue him and never used racial slurs.
In last year's 131-page decision, Grue found El Hallak's "narrative gave rise to a number of troubling questions relating to the issue of credibility" and an assessment of the evidence favoured the officers' version of events.
Grue exonerated Downing on six charges under the Police Act including unlawful or unnecessary exercise of authority and discreditable conduct.
Grue pointed to testimony by Downing's former partner, Const. Nicholas Talvio, who said he would have remembered if Downing used racial epithets "because he had never heard a police officer use such slurs."
Grue concluded: "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.
"If an officer did so, it would certainly have been noticed and remembered."
'Subjective experience'
On Thursday, El Hallak's lawyer Kate Engel argued Grue's opinion over 50 years with the police service was not quantifiable data.
"It was highly inappropriate in the appellant's submission to come to conclusions about this issue on the basis of subjective experiences and opinions of one person — a person whom I also understand to be Caucasian," Engel said.
"Not only is this just the experience of one person, it is the experience of a person who is not racialized. So it was inappropriate for the presiding officer to rely on his own personal opinions and subjective experience, to conclude that it would be unthinkable for an officer to ever do such a thing."
During the arrest, Downing had run about 15 metres ahead, so Talvio would not have been in a position to hear his comments, Engel said. She also challenged several scenarios where Grue concluded El Hallak's credibility was in question and said multiple consistent statements to police about him being punched in the back of a police vehicle were ignored.
Downing's defence lawyer, Ian Wachowicz, said Grue had to make a decision about two radically different stories where the allegations had not been proven and it came down to credibility.
Wachowicz said Talvio was a reliable witness because he readily admitted to actions "against his favor" such as improper note-taking about the arrest.
He said Grue's comment about his own experience as a police officer was made specifically in response to testimony given by Talvio, who testified that he didn't hear Downing use racial slurs.
"[Grue] didn't say it never happens," Wachowicz told the board.
"The whole point was that because it was not something that's done, it wasn't part of the culture of police officers, though it may happen from time to time. If it did happen, it's something that Constable Talvio would remember."
Wachowicz said the board was being asked to "basically relitigate the case" which " we know is what this board is, is not to do."
Talvio was also cleared on all charges of professional misconduct in the 2021 decision.
The appeal board's written decision will be released within two months.