Chen et al. v. Alberta (Attorney General), (2007) 416 A.R. 14 (QB)

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 25, 2007
• Citations: (2007), 416 A.R. 14 (QB);2007 ABQB 267

Chen v. Alta. (A.G.) (2007), 416 A.R. 14 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. MY.006

Huixia Chen, Chunyan Huang, Patrick Turc and Beryl Guo (applicants) v. Attorney General of Alberta (respondent)

(0503 20829; 2007 ABQB 267)

Indexed As: Chen et al. v. Alberta (Attorney General)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wilson, J.

April 23, 2007.

Summary:

The applicants were followers of the Falun Gong faith. At a conference, they observed two Chinese consulate officials distributing anti-Falun Gong literature. Alleging a hate crime, they complained to the city police. The Assistant Director of Special Prosecutions concluded that there was no reasonable likelihood of conviction and declined to consent to the prosecution. The applicants sought judicial review.

The Alberta Court of Queen's Bench dismissed the motion.

Civil Rights - Topic 5653.7

Equality and protection of the law - Particular cases - Prosecutorial discretion (incl. private prosecutions) - The applicants were followers of the Falun Gong faith - At a conference, they observed two Chinese consulate officials distributing anti-Falun Gong literature - Alleging a hate crime, they complained to the city police - The Assistant Director of Special Prosecutions concluded that there was no reasonable likelihood of conviction and declined to consent to the prosecution - The applicants sought judicial review, asserting that the decision breached their equality rights under s. 15 of the Charter - The Alberta Court of Queen's Bench dismissed the motion - The argument was advanced without any evidence to support the s. 15 position and without any challenge to s. 319(2) (willful promotion of hatred) of the Criminal Code - No matter how the attack on the decision was framed, it amounted to a review on the standard of flagrant abuse and there was no evidence of that - Further, a s. 15 argument would likely fail on the basis that the applicants were not treated any differently than any other ordinary people who could have been informants - See paragraphs 20 to 27.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The applicants were followers of the Falun Gong faith - At a conference, they observed two Chinese consulate officials distributing anti-Falun Gong literature - Alleging a hate crime, they complained to the city police - The Assistant Director of Special Prosecutions concluded that there was no reasonable likelihood of conviction and declined to consent to the prosecution - The applicants sought judicial review - The Alberta Court of Queen's Bench dismissed the motion - Not consenting to a prosecution was an exercise of prosecutorial discretion - The standard of review was flagrant impropriety - The onus was on the applicants - The standard of proof was a balance of probabilities - That standard could only be met in the clearest of cases and not by mere speculation or conjecture - There was no evidence whatsoever of anything approaching flagrant impropriety - See paragraphs 10 to 19.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - [See Criminal Law - Topic 26 ].

Crown - Topic 2895

Crown immunity - Exceptions - Flagrant impropriety - [See Criminal Law - Topic 26 ].

Cases Noticed:

Krieger et al. v. Law Society of Alberta (2002), 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 CarswellAlta 1133 (S.C.C.), refd to. [para. 12].

Zhang v. Canada (Attorney General) (2006), 288 F.T.R. 115; 2006 CarswellNat 506 (F.C.), refd to. [para. 12].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 14].

Kostuch v. Alberta (Attorney General) (1995), 121 A.R. 219 (Q.B.), refd to. [para. 14].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 14].

Leung v. Kilgour (2004), 360 A.R. 71; 2004 CarswellAlta 715 (Q.B.), refd to. [para. 17].

R. v. Ng (K.-F.) (2003), 327 A.R. 215; 296 W.A.C. 215; 2003 CarswellAlta 213 (C.A.), refd to. [para. 18].

Chartrand v. Québec (Procureur général) et Machabée (1987), 14 Q.A.C. 81 (C.A.), dist. [para. 21].

Counsel:

Shirish P. Chotalia (Pundit & Chotalia) and D. Matas, for the applicants;

Tim Hurlburt and Christine Enns (Alberta Justice), for the respondent.

This motion was heard on January 25, 2007, by Wilson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on April 23, 2007.