An Alberta provincial judge will decide Tuesday morning whether to recuse herself from a case involving allegations of police misconduct and bias.
Judge Donna Valgardson’s two sons are Edmonton police officers, court heard Monday.
Defence lawyer Tom Engel urged Valgardson to step aside in the trial of Moe Tesfay who is charged with obstruction of a peace officer.
“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.”
Crown prosecutor Vernon Eichhorn opposed the move.
“There’s no indication that the relatives would be linked to this case in any form or fashion,” he said.
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. 23, 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 the target of harassment and racial profiling 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.
Initally, Valgardson said she didn’t see how her relations were a basis for recusal.
“None of the officers are related to me in any way,” said Valgardson, who eventually agreed to give Engel two hours to prepare his arguments.
It would be surprising if neither of your sons worked with some of these involved officers– Lawyer Tom Engel
Later that afternoon, Engel argued that a reasonable person would probably conclude there could be bias.
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.
Engel informed Valgardson that he had once made a complaint against some police officers that included her son.
But Eichhorn insisted Valgardson would be free to make judgements on the credibility of the officers.
“A reasonable and informed person would not form an apprehension of bias in these circumstances,” said Eichorn. “There is no evidence that this honourable court will not be impartial.”
He said there is no cogent evidence that litigation would affect the judge’s family members.
“It’s speculative to assert that whatever is adjudicated in this matter will involve your sons or affect your sons,” said Eichorn.
Valgardson will hand down her decision Tuesday morning.