Edmonton police chief finds officer who cracked man’s skull may have used excessive force but opts not to hold hearing

Edmonton’s police chief says an officer may have used excessive force when he fractured a man’s skull during a takedown but has opted not to send the constable to a disciplinary hearing after concluding the misconduct was “not of a serious nature.”

Chief Dale McFee issued a decision on Feb. 6 in the case of Everett Rain, who was arrested for public intoxication and breaching release conditions on Nov. 18, 2019.

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Rain was taken to a holding area in Edmonton Police Service headquarters where officers tried to search him, McFee said. While Rain was handcuffed and restrained by two officers, Const. Michael Zacharuk attempted a takedown, sending Rain’s head crashing into the floor, McFee said.

McFee took issue with Zacharuk’s choice of tactics, saying the takedown “did not appear proportionate” to Rain’s actions.

However, the chief decided to deal with the case under a section of the law allowing him to dispose of complaints without a hearing if he deems the misconduct “not of a serious nature.”

McFee cited several reasons for doing so, including the Crown’s earlier decision to stay criminal proceedings against Zacharuk. In justifying that decision, the Crown cited a report from a use-of-force expert with a history of testifying for officers accused of using excessive force.

Erika Norheim, Rain’s lawyer, disagrees with McFee’s decision. She compared the case to that of Pacey Dumas — an Indigenous man kicked in the head by an Edmonton police officer who the Crown opted not to prosecute.

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“I think it’s insulting to say that it’s not serious,” she said. “If this is not serious, then what is serious?”

Norheim said there is security camera footage of the takedown, but due to a court order, she cannot release it.

‘Modified armbar takedown’

Rain was 28 when police arrested him following a domestic disturbance involving his girlfriend, who he claimed repeatedly punched him. Police tried to arrange for Rain’s grandmother to pick him up but took him into custody when she refused. Rain was under court order at the time not to consume drugs or alcohol.

Zacharuk and another constable were in the EPS cellblock and went to help after hearing Rain yell at the arresting officers. The officers said Rain — who stood about six feet tall and weighed 220 pounds — tried to climb over his handcuffs to get them in front of his body. Some worried Rain, who was bleeding from the mouth, would spit at them.

Officers gave differing accounts of Rain’s level of resistance. While some said Rain was an active threat, a correctional peace officer said Rain was “not particularly worse” than the “typical drunk” and deemed the takedown “not necessary.”

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McFee put little weight on the CPO’s opinion, noting she was busy with other tasks at the time.

Zacharuk pressed Rain against a wall and used a pressure point before attempting the “modified armbar takedown.” He claims he lost his grip during the move, causing Rain to strike his head.

Rain says he awoke in hospital with no memory of what happened. The Alberta Serious Incident Response Team (ASIRT), Alberta’s police watchdog, was alerted after Rain was diagnosed with a basal skull fracture and an injury to his ear.

Crown stayed case

In 2022, ASIRT charged Zacharuk with assault causing bodily harm. While Crown prosecutors initially agreed with ASIRT’s assessment that Zacharuk may have committed a criminal offence, they later opted to stay proceedings after receiving an opinion from a use-of-force expert.

That expert — former Vancouver police officer and Justice Institute of B.C. instructor Brad Fawcett — said the force Zacharuk used appeared to be “proportional to the resistance demonstrated (by Rain)” and “consistent with training,” McFee summarized.

The Crown’s use of an outside use-of-force opinion — rather than relying on ASIRT’s judgment — is one of several parallels with the Dumas case, Norheim said. ASIRT issued a scathing report about the EPS officer who kicked Dumas but opted not to lay charges because the Alberta Crown Prosecution Service refused to prosecute the case. The Crown relied in part on a use-of-force opinion — which has never been made public — suggesting the officer’s actions could be legally justified.

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Both cases also involve “a very significant use of force against a vulnerable Indigenous person resulting in serious injury,” Norheim said.

Last month, Alberta’s justice ministry announced that retired Court of Appeal Justice Peter Martin will review “policies and practices” of the Crown and ASIRT. The review came in response to the Dumas case and others in which prosecutors declined to pursue charges against police officers despite ASIRT finding grounds to believe they may have committed offences.

‘Not of a serious nature’

In a Feb. 6 letter to Rain, McFee said it is “difficult to see” how the takedown could be considered proportional, necessary and reasonable.

While Rain was acting belligerently and Zacharuk may not have intended to injure him, “his actions are what caused your head to hit the ground and he should have been aware of that possibility given that you were restrained by handcuffs and therefore unable to use your arms to protect yourself,” McFee said.

He noted that Zacharuk and the other officer appeared to have the situation under control and had two other officers nearby if they needed help.

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“I have determined that there is a reasonable prospect of sustaining a finding of unlawful or unnecessary exercise of authority against Const. Zacharuk for taking you to the ground with excessive force.”

However, McFee decided not to call a formal disciplinary hearing. He cited section 19(1) of the Police Service Regulation, which allows a police chief to forego a hearing if he believes “that the alleged contravention … is not of a serious nature.”

“In making this decision, I considered the alleged criminal conduct was withdrawn by the Crown following receipt of an expert opinion,” McFee said, “and although the allegation was related to the use of force, the issue was not whether Const. Zacharuk could use force; rather, it was that he chose to use force that was not proportionally necessary under the circumstances.”

Zacharuk has been ordered to take additional use-of-force training and will have the misconduct on his record for two years. Cases dealt with under section 19(1) cannot be appealed to the Law Enforcement Review Board.

‘Blinkered’

Norheim said Rain is considering whether to seek a judicial review of McFee’s decision.

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While it can be misused, she believes section 19(1) has a role to play in police discipline.

“For example, an officer is rude to somebody — do we really need to go through a whole disciplinary process for that? I think not,” she said. “But it’s a complete abuse of that section to use it in a case such as this, where there was a serious act of violence that resulted in a serious injury.”

She also questioned Fawcett’s expert opinion and the Crown’s decision to seek it out — noting Fawcett has a long history of testifying on behalf of police officers accused of excessive force.

Most notably, Fawcett gave expert evidence at a public inquiry into the 2007 death of Robert Dziekanski, who died after RCMP officers repeatedly stunned him with a Taser at the Vancouver airport. Fawcett claimed the officers in that case used reasonable force — a view inquiry commissioner Thomas Braidwood described as “blinkered.”

Braidwood said if Fawcett’s approach to use of force reflected the training B.C. police officers receive, “it troubles me greatly.”

Fawcett could not be reached for comment. Edmonton police declined to comment, citing the possibility of appeals in the case.

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As for Rain himself, Norheim said he is four years sober, working full time and doing “very well” in the wake of the injury.

“This was a really traumatic event for him, but he’s really committed himself to personal growth,” she said. “And this is a huge part of his story.”

jwakefield@postmedia.com

x.com/jonnywakefield 

@jonnywakefield.bsky.social

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