The Applicant applied for an order in the nature of certiorari to quash the decision of the Attorney General not to proceed with criminal charges against two individuals. The Court dismissed the application on the basis that there was no evidence of “flagrant impropriety”.

Administrative law – Decisions of Attorney General – Prosecutorial discretion – Judicial review – Standard of review – Flagrant impropriety – Evidence – Statutory provisions – Criminal Code – Charter of Rights and Freedoms

Chen v. Alberta, [2007] A.J. No. 458, Alberta Court of Queen’s Bench, April 24, 2007, W.E. Wilson J.

The Applicants were followers of the Falun Gong faith who, on June 11, 2004, attended a conference at the University of Alberta where they witnessed two people whom they later identified as Chinese consulate officials distributing anti-Falun Gong literature. The Applicants alleged a hate crime and complained to the Edmonton City Police, who investigated and ultimately referred the matter to Special Prosecutions. The consent of the Attorney General was required for any prosecution, pursuant to section 319 of the Criminal Code. The Assistant Director of Special Prosecutions considered the matter and concluded on the facts alleged that there was no reasonable likelihood of conviction. The Applicants sought judicial review of his exercise of prosecutorial discretion.

Considering first the appropriate standard of review, the Court held that in a case of prosecutorial discretion, the normal “functional and pragmatic” analysis from R. v. Pushpanathan, [1998] 1 S.C.R. 982, does not enter into the consideration. All Canadian courts, including the Supreme Court of Canada, have applied the flagrant impropriety standard both before and after the decision in Pushpanathan in 1998, without going through the four-part analysis set forth in that decision. This is a specialized area of the law where the general functional and pragmatic test has not been and need not be applied.

The degree of impropriety to be met before the Court will intervene to reverse an action by the Attorney General is very extensive. It must border on corruption by the Crown, violation of the law, bias against the particular offence, or prejudice against the accused or the victim. The Courts require clear and unmistakable evidence before they would make a serious finding of flagrant impropriety. In this case, there was no evidence whatsoever of anything approaching flagrant impropriety, and on that basis the application was dismissed.

Finally, the Court rejected the Applicants’ argument that the decision of the Attorney General breached their equality rights under section 15 of the Charter. The Applicants were not treated any differently than any other ordinary people who could have been informants.

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