The Applicant sought Judicial Review of the exercise of prosecutorial discretion to not proceed with charges against a police officer for aggravated assault. As part of the Judicial Review process, the Applicant was required to meet a preliminary threshold, showing abuse of process. The Applicant also sought leave of the Court to introduce new evidence and for the Crown to provide a better Certified Record of proceedings pursuant to Rule 3.19. The Respondent (the “Crown”) brought a Cross-Application to strike or dismiss the Judicial Review for lack of evidence supporting the allegation of an abuse of process.

The matter involved a use of force incident that occurred when the Applicant was being arrested by a police officer, resulting in serious and life-threatening injuries. The Alberta Serious Incident Response Team (“ASIRT”) investigated the incident and concluded that there were reasonable grounds to believe that the policer officer committed the offence of aggravated assault. Despite this conclusion, the Crown determined that there was no reasonable likelihood of conviction and did not prosecute the officer. The Applicant alleged that the decision to not prosecute in light of ASIRT’s conclusions and the failure to provide reasons for this decision amounted to an abuse of process.

Justice Kraus reviewed the law surrounding prosecutorial discretion and abuse of process, and stated that it is not the role of the Court to second-guess the judgment of the Crown or to determine if their discretion was correctly exercised, and that failure to provide reasons for an exercise of that discretion does not make it improper.

The Court ultimately held that there was no evidence to support the allegation that the Crown’s decision amounted to an abuse of process and noted that the Applicant’s positions regarding internal favoritism and relationships between the police officer and the Crown were speculative and unsupported. As such the Crown’s application to dismiss the Judicial Review was granted.