Lawyers file second complaint over police actions against Edmonton defence counsel

Fresh off a victory in having a disciplinary hearing go ahead against an Edmonton officer alleged to have improperly targeted a local defence counsel, two lawyers have launched a complaint against a sergeant whose text messages to his colleague played a key role in the case.

“I do think it’s a big deal when lawyers are getting arrested because they’re not well-liked by the police,” says Erika Norheim, who’s counsel for Chady Moustarah, the defence lawyer allegedly targeted by police, and Aleksandra Simic, another lawyer present at the time of the 2011 incident.

In the latest development, Norheim has filed a complaint on Simic and Moustarah’s behalf against Edmonton Police Service Sgt. Dana Donald, who was among a group of lawyers gathered at a lounge in Edmonton on April 9, 2011.

According to the complaint sent to police Chief Rod Knecht this month, Donald sent a text message that day to Const. Adam Woodburn advising that Moustarah had been drinking and was about to drive away from the lounge. Woodburn had arrested and charged Moustarah with obstruction of justice a few years earlier for giving someone advice on his right to silence. The Crown had stayed that charge in December 2009.

After getting Donald’s text messages, Woodburn, who was working undercover at the time, tracked down Moustarah at another venue, arrested him, and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued the lawyer a roadside licence suspension under the Traffic Safety Act.

In 2014, Knecht dismissed a complaint about Woodburn’s actions. Simic appealed to the Alberta Law Enforcement Review Board, which earlier this month ordered police to conduct a disciplinary hearing on charges of unlawful or unnecessary exercise of authority and discreditable conduct.

Now, Moustarah and Simic are complaining that Donald’s actions in 2011 amount to engaging in corrupt practice.

“Sgt. Donald did not, and could not, have sincerely believed that Mr. Moustarah was driving while intoxicated,” Norheim wrote in the complaint. “Rather, we submit that it is apparent that Sgt. Donald made these statements to Cst. Woodburn to tease or otherwise provoke Cst. Woodburn rather than because he held a sincere belief that Mr. Moustarah was about to commit a criminal offence. . . .”

The complaint cites the fact there was no suggestion Donald made any attempt to see if regular patrol officers were available to make a traffic stop rather than someone working undercover, such as Woodburn.

“The personal advantage in this case was for Sgt. Donald’s own entertainment or amusement or, alternatively, retribution on the part of Cst. Woodburn,” wrote Norheim, citing Donald’s alleged motivation.

The letter notes that during an interview, Donald expressed an opinion that Moustarah had had four or five drinks that evening. Woodburn, however, had at one point said Donald told him in the text messages Moustarah had had six drinks.

“If Sgt. Donald did indeed inform Cst. Woodburn that Mr. Moustarah had consumed six drinks, this would amount to ‘deceit’ . . . as it was a false, misleading or inaccurate statement made willfully or negligently,” wrote Norheim in the complaint.

Norheim says there are other troubling aspects to the case, including what she alleges was the apparent destruction of the text messages exchanged between the two officers.

“Woodburn was never even asked for them.”

She notes in her letter she was able to proceed with the more recent complaint following information revealed in Knecht’s disposition letter on the complaint against Woodburn in 2014 and says another set of allegations are in the works over what happened to the text messages.

She says in regards to information received as part of the record in Simic’s appeal to the Law Enforcement Review Board, she believes she’s no longer subject to an implied undertaking and can move forward with the additional complaint now that the appeal body has released its decision.

Norheim says the case is reminiscent of the famous Overtime case in Edmonton in which police officers landed in hot water for attempting to target a local newspaper columnist and the chairman of the police commission in an impaired driving sting. The incident led to a series of lawsuits, disciplinary hearings, and appeals.

“It’s very similar to Overtime,” says Norheim, saying the case involving Moustarah and Simic has flown under the radar.

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