New Brunswick's public prosecution services is seeking a judicial review of a provincial court judge's decision not to proceed to trial in the case of two Bathurst police officers charged with manslaughter in the 2015 shooting death of Michel Vienneau.
"Public prosecutions services is of the opinion that the judge at the preliminary hearing failed to consider all of the relevant evidence and thereby committed a jurisdictional error," spokesperson Sheila Lagacé said in a statement issued on Tuesday.
Judge Anne Dugas-Horsman ruled in February there wasn't enough evidence to send Const. Patrick Bulger, 38, of Beresford and Const. Mathieu Boudreau 26, of Dunlop to trial.
The prosecution failed to meet the threshold that both accused engaged in an illegal act when they attempted to arrest Vienneau, she said.
Public prosecutions wants a Court of Queen's Bench justice to review that decision.
Bulger and Boudeau are "disappointed" with the request for a judicial review of the court's decision that led to the discharge "of these criminal allegations against them," said Boudreau's defence lawyer T.J. Burke, speaking on behalf of himself and Bulger's lawyer, Brian Munro.
"This has taken a significant emotional toll on both individuals and has disrupted what otherwise has been a period of time where they were prepared to reintegrate into work and serve as police officers both publicly and professionally for the City of Bathurst," Burke said.
Vienneau, 51, a Tracadie businessman, was shot and killed in the parking lot of the Via Rail station in Bathurst on Jan. 12, 2015, after getting off a train from Montreal.
Bathurst Police Force officers were attempting to arrest Vienneau and his common-law partner as part of a drug investigation prompted by an anonymous Crime Stoppers tip received that morning.
Bulger and Boudreau were each facing charges of manslaughter with a weapon, assault with a weapon and unlawfully pointing a firearm.
"We intend to vigorously defend the actions of both officers that occurred on that specific date," said Burke.
The Court of Queen's Bench could uphold the provincial court's decision or Bulger and Boudreau could be committed to stand trial following the review, said veteran defence lawyer David Lutz.
"The Court of Queen's Bench has the authority to overrule the decision of a provincial court judge," he said.
Lutz expects the review would be based on information already on the record, without introducing any new evidence. The record will need to be transcribed, however, which could take "months," he said.
It's "a highly unusual manner of proceeding," said Lutz. It's the first time he has heard of a judicial review in this type of situation in years, he said.
But it's the only way to essentially appeal a preliminary inquiry decision. A preliminary inquiry decision cannot be appealed because it's "an interim of a court process," Lutz explained.
Public prosecution services is independent and does not act on direction from the provincial government in the discharge of its responsibilities.
"No further comments will be provided as this matter continues before the courts," Lagacé said.