Edmonton police withheld video of officer assault on Indigenous man for 4 months

For four months, Edmonton police withheld from prosecutorsa private citizen's cellphone videoshowing a violent assault by an officer on an Indigenous man.

The video showed a police officer driving his knee into the back of a prone, defenceless Elliot McLeodduring an August 2019 arrest.

Both Edmonton police and Mcleod's lawyer confirmed to CBC News in recent weeks that the video was withheld from prosecutors following McLeod's violent arrest.

After the video was disclosed, prosecutors stayed four criminal charges against McLeod, including resisting arrest and assaulting a police officer.

The Crown instead charged, and a judge subsequently convicted, one of the arresting officers for what the judge called a "gratuitous" assault.

• Edmonton officer charged after Indigenous man violently kneed during arrest

Police arrested McLeod on Aug. 27, 2019. The Edmonton Police Service (EPS) received the video the next day from a private citizen. But EPS did not disclose it to Crown prosecutors until late December 2019, about two weeks before McLeod's trial.

Legal experts say police should have disclosed the video to the Crown and McLeod's defence lawyer as soon as possible. A former Crown prosecutor said the failure by EPS to immediately disclose the video violated the law and undermined McLeod's rights.

"The law is very clear that all relevant evidence gathered by the police has to be turned over to the Crown immediately, and then has to be disclosed by the Crown to the defence," said Paul Moreau, who is now a criminal defence lawyer.

"That is even more important in a case like this, where the video was not only the best evidence of the events, but also exculpatory," he said.

"It saved the accused. They should have turned it over instantly."

Citizen filmed violent assault

About six weeks before police disclosed the video, prosecutors offered McLeod a plea deal of 65 days in jailand 12 months ofprobation. McLeod'sformer lawyer, Nicole Sissons, said he turned down the offer because he insisted he was innocent.

University of Alberta criminal law professor Steven Penney said full disclosure should be provided before a plea is offered.

"If there is a big piece of the puzzle missing and this video is obviously a huge piece of that puzzle you wouldn't want to see someone, for example, pleading guilty to something that they very likely were innocent of because that evidence was absent at the time," Penney said.

Edmonton police Chief Dale McFee declined several interview requests.

In a statement, an EPS spokesperson said the Professional Standards Branch "was not able to locate/make contact with all of the witnesses" until late December 2019.

The bystander video shows McLeod lying face down on the ground while EPS Const. Curtis McCargar holds his arms behind his back.

Another officer, Const. Michael Partington, strides up and, without warning, drives his knee between McLeod's shoulder blades.

McLeod screams in pain and pleads with the officers to stop the beating while yelling for help. McCargar can later be seen punching a handcuffed McLeod in the back of the head before he is placed in a cruiser.

• 'All he did was scream': Father reacts to video of police officer dropping a knee onto son

Partington did not file a use of force report, as required by EPS policy.

McCargar laid four charges against McLeod, including assaulting a police officer and resisting arrest. The officer later told a judge he had stopped McLeod for riding his bike on the sidewalk without a bell or horn, a bylaw infraction. McLeod gave the officer a false name before fleeing.

The cellphone video of McLeod's arrest was shot by Tyler Eaglespeaker.

Eaglespeaker said he gave the video to a friend, Natasha Wright, because he feared being targeted by police. Wright is also Indigenous, but shesaidshe appears white.

Video provided to police day after arrest

Wright provided the video to EPS the day after the arrest and was contacted by an officer from the Professional Standards Branch on Sept. 4. Wright said she can't remember if she spoke to the officer at that time.

Eaglespeaker said he was not contacted by EPS for months, even though the arrest occurred on the front lawn of his family's home in central Edmonton.

Nine months after McLeod's arrest, on June 5, 2020, Wright participated in a Black Lives Matter protest following the murder of George Floyd by a Minneapolis, Minn., police officer. Wright said she posted the video of McLeod's arrest while at the protest after some people said police brutality doesn't occur in Canada.

CBC News and other media outlets broadcast the video.

"She [the Professional Standards Branch officer] called me after the video went viral and that is when she got Tyler's contact information," Wright said.

Officer charged after video goes viral

Prosecutors charged Partington with assaulting McLeod on June 16, 2020, a week and a half after Wright posted the video.

In finding Partington guilty in August, JudgePeter Ayotte said the video was a key piece of evidence. It contradicted the narrative created by the police officers to justify McLeod's violent arrest.

• Edmonton police officer found guilty in knee-drop assault on Indigenous man captured on video
• Crown seeks jail time, probation for Edmonton police officer who assaulted Indigenous man

Partington is to be sentenced Dec. 2. The Crown has asked for a 60- to 90-day jail sentence followed by 12 to 18 months of probation. The defence asked for a conditional discharge or a suspended sentence.

McLeod had been in the Edmonton Remand Centre for three months on other charges.

At McLeod's Jan. 10, 2020, trial, the Crown stayed the charges against him and he was released. He was subsequently charged with second-degree murder in the stabbing death of a woman and is in the remand centreawaiting trial.

CBC News asked Alberta Justice what, if anything, it did, or plans to do, about EPS failing to disclose the video and why McCargar wasn't charged for punching McLeod while he was handcuffed.

A spokesperson provided a statement that did not address those questions.

Edmonton police said once Partington is sentenced and a complaint investigation is resolved,they will begin another internal investigation into McCargar's behaviour during McLeod's arrest.

Moreau, the former prosecutor, said the EPS needs to be held accountable.

"There is no question this case is a real black eye for the Edmonton Police Service, and I think that at the level of the senior administration, they should be explaining themselves to the public."

If you have information for this story, or information for another story, please contact us in confidence at cbcinvestigates@cbc.ca.