In a scathing ruling issued Thursday, an Alberta provincial court judge has found an Edmonton Police Service constable guilty of an “unnecessary and gratuitous” assault on an “unresisting” Indigenous man, captured on a bystander’s video.
Provincial court Judge Peter Ayotte rejected the entire narrative created by Const. Michael Partington and his colleague Const. Curtis McCargar to justify a violent assault on Elliot McLeod in August 2019.
The judge, in an eight-page ruling, found the testimony of both officers unreliable, self-serving, and at times, an outright fabrication.
Played repeatedly in court during the week-long trial, the bystander’s cellphone video proved crucial to the Crown’s case. The judge noted the video directly contradicted major parts of the testimony of both Partington and McCargar.
The video shows McLeod face-first on the ground with McCargar, the arresting officer, holding both of the prisoner’s hands behind his back on the front lawn of a house in Edmonton’s inner city.
Witnesses confirmed McLeod’s testimony that he was not struggling or resisting arrest and that his hands were behind his back.
Partington, the second officer to arrive on the scene, strides up to the pair, and without warning, drives his knee with the full force of his weight between McLeod’s shoulder blades.
McLeod screams in pain and pleads with the officers to stop the beating while yelling for help. McCargar later can be seen punching McLeod in the back of the head, while he is handcuffed, before he is placed in a cruiser.
Officer accused of manufacturing story
During the trial, Crown prosecutor Carla MacPhail meticulously picked apart the officers’ testimony and accused Partington of manufacturing a story to justify the assault — after he learned the entire arrest had been captured on video.
There was no investigation or charge in the case until the video was posted on social media about 10 months after the incident in response to the Black Lives Matter movement following the murder by police of Black man George Floyd.
The judge was particularly critical of McCargar’s testimony.
“I found the bulk of McCargar’s evidence extremely self-serving and principally aimed at justifying his own conduct and maximizing that of Mr. McLeod,” Ayotte said.
“Instead of just answering the questions put to him, he often amplified them by telling me what was going on in his own mind, the so-called ‘what ifs’ referred to by Crown counsel in argument.”
McLeod’s testimony contained statements that were false, but the judge found that on the main evidentiary elements, his testimony was reliable and truthful.
In often rambling and emotional testimony, McCargar described how he had stopped McLeod for riding his bike on a sidewalk without a bell, a bylaw infraction.
He demanded McLeod’s name. McLeod admitted in testimony that he gave a false name before fleeing on his bike.
McCargar caught McLeod and pulled him off his bike.
He testified he punched McLeod three or four times in the back of the head to gain his compliance.
In several hours of testimony, McLeod repeatedly claimed he feared for his safety and he said he was in a fight that he thought he might lose, a narrative the judge rejected.
“In attempting to emphasize his own danger, [McCargar] told me a number of community members came out as he was attempting to restrain Mr. McLeod and that one of them, a woman, came up to him and asked if needed any help — a complete fabrication on the evidence presented,” Ayotte said.
“Neither the video, the defendant or the two [witnesses] who were watching from their house make any mention of anyone else being present, much less a small group of community members,” the judge said.
Partington had testified that he rushed to the scene with his lights and siren on because he believed his partner was in imminent danger. The judge pointed out that there was no siren captured on the video and no witness heard a siren.
Most telling for the judge was Partington’s testimony that he never realized how hard he had kneed McLeod until he saw the video a year later, and that he didn’t notice any screaming by McLeod after.
“Both of those assertions simply beggar belief given the dispassionate evidence of the video,” the judge said.
Also beggaring belief, the judge said, was Partington’s assertion that he did not mention his use of force to a superior officer — when asked directly — nor did he mention in a report he filed “because he felt he had done nothing wrong.
“For these and other reasons,” the judge said, “I do not believe [Partington’s] evidence in many of its relevant aspects, nor does it raise, on its own, a reasonable doubt about his guilt.”
Partington has been suspended without pay since he was charged last year.
The Crown and defence will make sentencing submissions on Oct. 1. McLeod is expected to make a witness impact statement.
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