Private Prosecutions in Canada

Criminal proceedings in Canada are typically instigated by the Crown. However, private citizens, as complainants, have a similar statutory right. Under the public regime, prosecution of certain offences may proceed very slowly for lack of resources, or not at all.

Private prosecutions therefore provide a valuable opportunity for corporations and individuals to redress legal wrongs in a manner that is more timely or sensitive to their needs. For example, a corporation may commence private prosecutions where the relevant authorities lack the resources necessary to address the issues. Fraud, forgery, or theft of intellectual property, among many other forms of criminal activity that can occur in the corporate context, may all lend themselves to private prosecutions. However, private prosecutions can be difficult undertakings that require expertise.

Background

The right of an individual to commence a private prosecution against another is well established in Canada and is codified by statute. Pursuant to section 504 of the Criminal Code,[1] “Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice” [emphasis added][2] provided they satisfy the relevant statutory requirements.

According to the Court of Appeal for Ontario, “[b]y its use of the expansive term ‘any one’, s. 504 applies to everyone who lays an information…, including private citizens…, peace and public officers, the Attorney General and the Attorney General’s agents….”[3] Similarly, in Ontario's Provincial Offences Act[4], the word “prosecutor” is defined to include “[t]he person who issues a certificate or lays an information.”[5]

Initiating a Private Prosecution

Private criminal proceedings must be commenced by swearing an “Information.” An “Information” is a document that details the allegations of the criminal or illegal conduct.

Step One: Receipt of the Information

A complainant who wants to initiate a private prosecution must have reasonable grounds to believe that another person has committed a crime or has violated a Canadian law which can be prosecuted privately. Those beliefs must then be detailed in a standard form and submitted to a Justice of the Peace.

“Reasonable grounds” are a fundamental element of private prosecution. A complainant wishing to proceed with a private prosecution must have reasonable and probable cause to initiate the proceedings. Reasonable and probable cause “means a genuine belief, based on reasonable grounds that the proceedings are justified…”[6] In the case of a private prosecution, the complainant “is not required to believe that the accused is guilty: it is enough if he believes there is reasonable and probable cause for prosecution. He need only be satisfied that there is a proper case to lay before the court.”[7]

By contrast, the Attorney General must meet a more stringent test:

1. Is there a reasonable prospect of conviction based on evidence that is likely to be available at trial? and
2. Would a prosecution best serve the interest of the public? [8]

To lay an Information, a complainant must set out the allegations in a prescribed form. The form should provide as many details of the alleged offence as possible, including but not limited to:

• Names, addresses and contact information of all alleged offenders;
• Place, time and date of the alleged offence;
• Names, addresses and contact information of any witnesses to the offence;
• Whether the police have been involved; and
• Whether prior attempts have been made to commence a proceeding against the alleged offender.

A Justice of the Peace (or provincial court judge) will review the information and decide whether the information provided meets all the necessary statutory requirements to move forward with the prosecution. If the requirements are met, the Justice of the Peace will direct the preparation of the “Information.” Not to be confused with the original information provided by the complainant, this Information is the document that officially sets out the allegations of the criminal conduct. The complainant who filed the details of the alleged criminal conduct will be required to swear an oath or affirm the truth of the contents of the Information

If the Justice of the Peace is not satisfied with the Information provided, the complainant can amend the original application within six months. The Criminal Code provides that where the Justice of the Peace has not issued process (i.e. the Information has been sworn) or the complainant has not commenced proceedings to compel process within six months, the Information will be deemed to never have been laid. [9]

Step Two: Notice of Pre-Enquete Hearing   

Once the Justice of the Peace has directed the preparation of an Information, the Justice of the Peace will select a date for an ex-parte hearing (a hearing without the presence of the parties, usually to one party’s benefit). This ex-parte hearing is what is commonly referred to as the pre-enquete hearing. At this time, the Court will determine whether a summons or warrant should be issued to compel the appearance of the accused before the Court.

The Crown Attorney’s office must receive a copy of the private Information and reasonable notice of the pre-enquete.[10] The Crown has the right to attend the hearing but cannot interfere in the process until after the pre-enquete hearing. The Crown’s appearance at the hearing does not mean that the Attorney General has intervened in the proceeding.

Step Three: The Pre-Enquete Hearing

The pre-enquete hearing allows the Court to determine whether there is sufficient evidence to substantiate the complainant’s allegations or accusations. The complainant, or the complainant’s representative, may examine witnesses and present evidence at the pre-enquete hearing. This is a challenging and technical procedure; retaining skilled counsel with experience in private prosecutions is essential in this respect.

The Attorney General is typically required to attend the pre-enquete hearing. The Attorney General’s participation is intended to ensure a number of protections, including

• Preventing proceedings that are not in the interest of the administration of justice;
• Preventing abuse of the use of criminal proceedings or of the court system;
• Preventing the use of criminal proceedings for malicious or unfair purposes;
• Ensuring the efficient allocation of court resources;
• Identifying prosecutions where the allegations are against a police officer, Crown Attorney, or other justice official or public figure;
• Identifying cases that raise significant legal or policy issues; and
• Preventing cases where the law requires the Attorney General’s consent to the laying of an Information (i.e. when the charge is against a minor).

During the pre-enquete hearing, the Attorney General may cross-examine the informant’s witnesses, call their own witnesses and present any relevant evidence at the hearing.[11] Following the examination of the witnesses and the presentation of any other evidence, the Court will determine whether to issue a summons or warrant to compel the accused to answer the charge.

Practical Considerations

The Attorney General May or May Not Intervene

The Attorney General is not required to move forward with the prosecution. As the Court of Appeal for Ontario stated in R v McHale, “[w] here the [Attorney General] considers that the interest of justice require (sic) his or her intervention, the [Attorney General] is entitled to interfere, to take over the prosecution and to terminate or continue it as she or he considers appropriate.”[12] To be clear, the Attorney General’s participation is not usually essential; only certain circumstances require the Attorney General’s intervention by law.[13] If a summons or warrant is issued, and the criminal conduct alleged in the Information is an indictable offence, the Attorney General is legally required to take over the prosecution.[14] In situations where the alleged criminal conduct is a summary offence, the Attorney General is not required to intervene but may do so regardless.

If the Court issues the criminal process, the Attorney General will screen the charge according to the Charge Screening Directive. In brief, the Attorney General will determine whether there is a reasonable prospect of conviction and whether it is in the public interest to move forward with the criminal prosecution. The Attorney General must also conduct a further investigation into the alleged offence (i.e., contacting the police to determine if there was a police investigation and, if so, whether the Attorney General has all the material in the police’s possession). If, following this investigation, the Attorney General is of the view that “there is no reasonable prospect of conviction, or that the prosecution is not in the public interest,”[15] the Attorney General must terminate the proceedings and withdraw the charge.

If the Attorney General determines that the proceedings should continue, she or he must decide whether to take over the prosecution or whether the complainant will continue to conduct the proceeding. In cases involving intimate partner violence, minors, and alleged indictable offences, the Attorney General must intervene.[16] The Attorney General has the last word when it comes to deciding whether an alleged offence should be prosecuted or whether the charge should be withdrawn.

The Prosecutor Must Remain Impartial

The role and responsibilities of a private prosecutor largely mirror those of the Attorney General. Most importantly, a prosecutor must always remain neutral. Prosecutors have a duty which extends beyond what is expected of other parties:

It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings. [17]

A complainant cannot initiate a private prosecution based on the desire to get revenge or punish the alleged offender. Doing so puts that person at risk of suit for malicious prosecution.

For example, in Ferreira v Marco,[18] the plaintiff and defendant argued over renovations in the plaintiff’s backyard leading to allegations of physical altercations. The defendant, Mr. Marcos, laid a private Information against the plaintiff, Mr. Ferreira, “comprising assault, three counts of assault with a weapon, three counts of uttering death threats, mischief by trespassing and mischief under $5000.”[19] The plaintiff then brought an action against the defendant for malicious prosecution. The Court held “that the privately laid charges made by [the defendant] … were, in certain cases, almost mirror images of the defendant’s conduct complained of by [the plaintiff] at the time of the above-mentioned incidents…”.[20] The Court found that the allegations were not “founded on an honest belief in the guilt”[21] of the defendant. As such, the Court concluded that the defendant’s action was an abuse of process.

Challenges

Private prosecutions are complex and technical proceedings. Criminal trials require the prosecutor, public or private, to prove beyond a reasonable doubt that the alleged offence occurred. This is a high evidentiary threshold.

For instance, a complainant will have great difficulty obtaining a search warrant or may lack the expertise required in order to obtain relevant information further to a Freedom of Information request. A complainant who wishes to initiate a private prosecution will also be bound by a significant duty of disclosure, pursuant to section 11(a) of the Canadian Charter of Rights and Freedoms, s. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 which states that an accused has the right to be informed without unreasonable delay of the specific offence and the right of disclosure of all relevant information.

Prosecutors, including private prosecutors, must avoid offering personal opinions about the proceedings when discussing the prosecution in public or with the media. A private prosecutor must be particularly careful in their communications with the accused—this can become a serious issue if the private prosecutor has a relationship with the accused. For example, a private prosecutor engaging in conversations with an alleged offender about the trial could be subsequently accused by the alleged offender of threatening them to admit guilt.

The Right to Private Prosecutions is Important

Private prosecutions serve an important function. They allow individuals to address gaps or deficiencies in the public prosecution system. Law enforcement agencies often lack the resources required to address violations that should be prosecuted. Further, private prosecutions allow the general public to promote, “goals of access to justice, government transparency, and government accountability.”[22]

Additionally, costs are not awarded in criminal prosecutions. A private prosecutor cannot recover costs from the accused if the prosecutor is successful and, similarly, the accused cannot recover costs from the private prosecutor if the prosecutor fails to secure a conviction (subject to limited and extraordinary exceptions). Accordingly, the prosecutor may pursue a just outcome without fear of a substantial costs award against her or him.

Most importantly, private prosecutions allow complainants to have direct access to the Canadian justice system. Much like voting, the right to private prosecution is enshrined in Canadian law and is statutorily protected.

As the Law Reform Commission of Canada noted in 1986, private prosecution is a valuable oversight mechanism of public prosecutions:

Society as a whole is the beneficiary where formal, positive citizen interaction with the justice system results in some additional control over official discretion. Also, the form of retribution which is exacted by the citizen’s resort of legal processes is clearly preferable to other unregulated forms of citizen self-help. Further, the burgeoning case-loads which our public prosecutors routinely shoulder are, in some small measure at least, assisted by a system which provides an alternative avenue of redress for those individuals who feel that their cases are not being properly attended to within the public prosecution system. Finally, it is our belief that this form of citizen/victim participation enhances basic democratic values while at the same time … promotes the general image of an effective system of administering justice within the Canadian state.[23]

While private prosecutions present many challenges, they can be very beneficial as outlined above. Clyde & Co’s Global Private Prosecutions team is experienced in addressing these issues and would be pleased to discuss these matters with you further.