A retired judge is reviewing the “policies and practices” of Alberta’s police watchdog and Crown prosecution service.
The review, initiated by Justice Minister Mickey Amery, comes after three recent instances where the Crown didn’t pursue criminal cases against Edmonton-area police officers, even though Alberta Serious Incident Response Team (ASIRT) investigations found reasonable grounds that they committed an offence.
No charges were laid against an Edmonton Police Service constable who kicked a young Indigenous man in the head, an EPS officer who fatally shot an unarmed man seconds after encountering him, or St. Albert RCMP officers who detained an autistic teenager they mistook for an adult drug user.
Former Court of Appeal of Alberta Justice Peter Martin was retained for the review in November, according a statement from Heather Jenkins, Avery’s press secretary. Martin’s appointment wasn’t publicly announced at the time.
His review is underway, Jenkins said. Once it’s finished, the ministries of justice and public safety and emergency services will review Martin’s report and “consider any recommendations it makes.”
Martin retired last year after serving on Alberta’s top court for nearly 20 years. He also sat on the Court of Queen’s Bench — now called the Court of King’s Bench — from 1998 to 2005.
He is expected to examine practices in other provinces and, possibly, make suggestions to regarding ASIRT and the Alberta Crown Prosecution Service (ACPS), and how they interact. The provincial government didn’t say whether the review will be made public, or when it’s expected to conclude.
The ACPS is participating in the review, according to a statement from a spokesperson.
ASIRT can lay charges directly, but the agency hasn’t taken that step after receiving ACPS opinions recommending against it.
Crown prosecutors use a stricter legal standard than the police watchdog when it comes to reviewing cases, because they have to weigh whether there’s reasonable likelihood of conviction, with evidence that amounts to proof beyond a reasonable doubt.
Review will ‘carry a lot of weight,’ lawyer says
Amery, the justice minister, first told Postmedia last May that he would pursue a review of the relationship between ASIRT investigations and prosecutions.
His comments came shortly after the prosecution service recommended no charges be laid against an EPS officer, who fatally shot 33-year-old Steven Nguyen in 2021. ASIRT had referred the case to them for a possible culpable homicide charge.
The officer, identified in a civil suit as Const. Alexander Doduk, gave a “problematic” version of events, according to the ASIRT investigation, which concluded there weren’t objectively reasonable grounds for the shooting.
Lawyer Tom Engel, who is representing Nguyen’s family members in the lawsuit, told CBC News he recently spoke to Martin as chair of the Criminal Trial Lawyers’ Association policing committee.
The retired judge is highly respected in the legal community, with considerable experience as a prosecutor before he was appointed to the bench, Engel said.
“[The minister] has appointed a very good investigator — one who’s going to carry a lot of weight — and I’d be pretty surprised if the government doesn’t accept Peter Martin’s recommendations,” Engel said.
Engel is hopeful for changes to the current process, where there’s no requirement for the Crown to explain decisions not to prosecute police officers, he said.
Engel pointed to B.C.’s prosecution service, which often releases a document called a “Clear Statement” to lay out its reasons for not approving charges against police.
“This is what’s important about these sorts of issues being raised in the public… because it does create some political pressure on the government of the day,” he said.
‘Why did you not put this in an open court?’
In March 2024, ASIRT concluded charges of unlawful confinement and assault should be considered against RCMP officers who, in 2022, handcuffed 16-year-old Ryley Bauman at a St. Albert playground and detained him in a holding cell.
The officers said they believed he was intoxicated. In fact, he is autistic and mostly non-verbal.
Almost a year earlier, in April 2023, the police watchdog said an EPS officer — identified in separate court filings as Const. Ben Todd — displayed a “shocking lack of judgment” in 2020, when he kicked Pacey Dumas while the 18-year-old laid on the ground, complying with police instructions.
The Crown recommended against laying charges in both instances, citing the unlikelihood of conviction.
Dumas’s lawyer, Heather Steinke-Attia, is seeking a judicial review of the decision not to prosecute the officer, who left her client with severe head injuries.
During a court hearing this month, Steinke-Attia argued that Dumas is being denied access to justice with no explanation.
“What we’re trying to do here is get an answer to Pacey Dumas and his family: Why did you not put this in an open court?” she said in court.
“The risk to the public is it sends a very strong message to all other police officers that they are in fact immune to prosecution… because even in the most extreme scenarios, they will not be charged.”
Alberta Justice lawyer Natasha Sutherland told the court that the case doesn’t meet the bar for proving an abuse of process on behalf of a prosecutor, which requires “incredible evidence.”
