Private Prosecutions

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2022. (Rev. # 95521)

Beginning a Private Prosecution

See also: Laying of an Information

Section 504 provides that anyone may lay an information under oath before a justice where they have reasonable grounds to believe a person has committed an indictable offence. Section 504 states:

In what cases justice may receive information

504 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, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

R.S., c. C-34, s. 455; R.S., c. 2(2nd Supp.), s. 5.

– CCC (CanLII), (DOJ)

Note up: 504

Laying a direct indictment requires a written order of a judge under s. 574:

574
[omitted (1), (1.1), (1.2) and (2)]

Private prosecutor requires consent

(3) In a prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment may not be preferred under any of subsections (1) to (1.2) [means of preferring an indictment] before a court without the written order of a judge of that court.
R.S., 1985, c. C-46, s. 574; R.S., 1985, c. 27 (1st Supp.), s. 113; 2002, c. 13, s. 45.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 574(3)

Youth Criminal Justice

Under s. 24 of the Youth Criminal Justice Act, the Attorney General must consent to any private prosecutions of young persons:

Private prosecutions

24 No prosecutions may be conducted by a prosecutor other than the Attorney General without the consent of the Attorney General.

– YCJA (CanLII), (DOJ)

Note up: 24

Intervention by the Attorney General

See also: Stay of Proceedings by Crown

The Public Prosecution is entitled to intervene on a private prosecution and can override anything done by the private prosecutor. [1] Intervention by the Attorney General in a private prosecution does not offend s. 7 of the Charter.[2]

There is no obligation on the part of the Attorney General to inform the private prosecutor that they are intervening.[3]

  1. ↑ Re Bradley et al. and The Queen, 1975 CanLII 766 (ON CA), 24 CCC (2d) 482, 9 OR (2d) 161 (CA), per Arnup JA at p. 490 ("...The Attorney General, and his agent, the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the private prosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney General...")
    Ahmadoun v Ontario (Attorney General), 2012 ONSC 955 (CanLII), [2012] OJ No 639, per Code J
  2. ↑ Kostuch v Alberta (Attorney General), 1995 CanLII 6244 (AB CA), 101 CCC (3d) 321, per curiam, at para 27
  3. ↑ Kostuch, ibid., at paras 27, 32

Compelling Attendance and Issuing Process

Section 507.1, requires that the justice, upon receiving a properly laid information, refer it to a provincial court judge, who considers whether to compel the accused's appearance. Section 507.1 states:

Referral when private prosecution

507.1 (1) A justice who receives an information laid under section 504 [receiving an information], other than an information referred to in subsection 507(1) [justice to hear informant and witnesses — public prosecutions], shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) [private prosecution – referral of information] and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

Conditions for issuance

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;
(b) is satisfied that the Attorney General has received a copy of the information;
(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and
(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.
Appearance of Attorney General

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) [issue summons or warrant – considered allegation evidence] without being deemed to intervene in the proceeding.

Information deemed not to have been laid

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2) [private prosecution – summons or warrant], he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

Information deemed not to have been laid — proceedings commenced

(6) If proceedings are commenced under subsection (5) [private prosecution – 6 month limitation to commence proceedings] and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

New evidence required for new hearing

(7) If a hearing in respect of an offence has been held under paragraph (3)(a) [issue summons or warrant – considered allegation evidence] and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

Subsections 507(2) to (8) to apply

(8) Subsections 507(2) to (8) [procedure for justice receiving an information] apply to proceedings under this section.

Non-application — informations laid under sections 810 and 810.1

(9) Subsections (1) to (8) [private prosecution – procedure on referral of information] do not apply in respect of an information laid under section 810 [peace bond – injury or damage] or 810.1 [sex offence peace bond].

Definition of “designated justice”

(10) In this section, "designated justice"' means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

Meaning of “Attorney General”

(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.
2002, c. 13, s. 22; 2008, c. 18, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 507.1(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), and (11)

Under s. 507.1(2), the affiant must present evidence that sets out a prima facie case, which requires 1) evidence on each element of the offence and 2) the judge or justice finds that the proceedings are not vexatious, frivolous or an abuse of process.[1] Where both requirements are satisfied then the judge or justice has a duty to issue process.[2]

Section 507.1 implicitly permits the justice the discretion to dismiss the matter where the judge "concludes the deponent of the information is mentally disordered or vexatious."[3] When dealing with vexatious litigants, the discretion is "limited."[4]

The judge or justice may not take into account whether the prosecution is unlikely to success or whether the attorney general is likely to withdraw the charges.[5]

Section 507.1 implicitly permits a judge to seize himself to all subsequent 507.1 hearings that flow from the private informations of a particular person.[6]

Appeal

There is no right of appeal of the decision to refuse process under s 507.1(2).[7] There is however a right to review the decision under writ of certiorari in aid.[8]

  1. ↑ R v Lai Ping Lee, 2014 ONSC 2471 (CanLII), per MacDonnell J, at para 7
    R v McHale, 2010 ONCA 361, 256 CCC (3d) 26, per Watt JA, at para 74
    R v Grinshpun, 2004 BCCA 579 (CanLII), 190 CCC (3d) 483, per Ryan JA, at paras 32 to 33
    R v Halik, 2010 ONSC 125 (CanLII), per Garton J, at para 20
  2. ↑ Lee, supra, at para 8
  3. ↑ R v Whitmore, 1989 CanLII 7229 (ON CA), 35 OAC 373, 51 CCC (3d) 294, per Grange JA
    R v Parkinson, 2009 CanLII 729 (ONSC), [2009] OJ No 157, per Marshall J, at paras 9, 20
    Aasland Informations, 2000 CanLII 8548 (MB PC), 186 Man.R. (2d) 161, per Devine J, at para 7
    R v Edge, 2004 ABPC 55 (CanLII), 21 CR (6th) 361, per Allen J
  4. ↑ Edge, ibid., at paras 69 to 73
  5. ↑ Lee, supra, at para 8
    e.g., R v Hu, 2014 ONSC 107 (CanLII), per Nordheimer J
  6. ↑ R v Thorburn, 2010 ABQB 390 (CanLII), 500 AR 1, per Marceau J, at para 77
  7. ↑ Lee, supra, at para 9
    Waskowec v Ontario, 2014 ONSC 1646 (CanLII), per Code J, at para 10
    Grinshpun, supra, at para 10
  8. ↑ Lee, supra, at para 9

Pre-Enquete Hearing

Section 507.1 outlines a requirement for a "pre-enquete hearing" before charges may be laid in a private prosecution, including before any issuance of "process" (ie. the prosecution process to be permitted to commence).[1]

Involvement of Crown

Before process can be issued in a private prosecution, the private party seeking to prosecute must give notice to the Attorney General.[2]

The Crown is entitled to attend the hearing, call or cross-examine witnesses, and present any other evidence at the hearing without being considered an intervener in the proceedings.[3]

The Crown may seek to stay the proceedings under s. 579 at any point, even before the commencement of the pre-enquete hearing.[4]

Purpose

The purpose of the pre-enquete hearing is to "to determine whether process should issue to compel the appearance of the prospective accused to answer to the charges contained in the information."[5] The process ensures that "ensure that spurious allegations, vexatious claims, and frivolous complaints bankrupt of evidentiary support will not result in a prosecution."[6]

Procedure

Pre-enquete hearings are normally to be conducted ex parte and in camera.[7]

The decision whether to issue process must be based on the allegations of the private informant and any other evidence adduced at the hearing.[8]

Acceptable Evidence

While s. 507.1 does not specify the type of evidence, at the hearing, the justice can only receive evidence that is relevant, material, credible, and trustworthy.[9]

Precondition to Issuing Process

The justice hearing the pre-enquete application must determine whether:[10]

  1. the information is valid on its face; and
  2. the evidence adduced on the hearing discloses a prima facie case on the offence(s) charged.

To be valid, the information must:[11]

  • describe an indictable offence according to s. 504;
  • the counts must contain in substance a statement that the accused committed an indictable offence according to s. 581;
  • the text must comply with the requirements of s. 581(2).

Evidence making a prima facie case must include evidence on "each essential element" of the offences alleged.[12]

Disclosure to Attorney General

Under s. 507.1(3), the Crown is entitled in all cases to the following:[13]

  1. a copy of the private information in Form 2;
  2. reasonable notice of the pre-enquete hearing;
  3. the opportunity to attend the pre-enquete;
  4. the opportunity to cross-examine witnesses; and
  5. the opportunity to call witnesses and present evidence at the hearing.
  1. ↑ R v Pike, 2018 NSSC 12 (CanLII), NSJ No 11, per Murray J, at paras hpw734
  2. ↑ s. 507.1(3)(c)
  3. ↑ R v Vasarhelyi, 2011 ONCA 397 (CanLII), 272 CCC (3d) 193, per Watt JA, at para 49
  4. ↑ Pike, supra, at paras 65 to 79
    Vasarhelyi, supra, at para 49
  5. ↑ Vasarhelyi, supra, at para 37
    R v McHale, 2010 ONCA 361, 256 CCC (3d) 26, per Watt J, at paras 10to 11, 45
    R v Glegg, 2021 ONCA 100 (CanLII), per Watt JA, at para 42
    PC v Ontario (Attorney General), 2020 ONCA 652 (CanLII), {{{4}}}, at para 27 ("purpose of a pre-enquete under s. 507.1(2) of the Criminal Code is for the presiding judge or justice to determine whether a case has been made out for the issuance of process to compel the putative accused named in the information to appear or attend in answer to any of the charges contained in the information.")
  6. ↑ PC, ibid., at para 30
  7. ↑ McHale, supra, at para 48
  8. ↑ Glegg, supra at para 42
    Vasarhelyi, supra at para 37
    McHale, supra at para 65, 74
    PC, supra at para 31 ("To vindicate this purpose, s. 507.1(3)(a) requires the presiding judge or designated justice to consider not only the allegations of the informant, but also the evidence of witnesses:")
  9. ↑ PC, supra at para 32 ("nothing less than evidence that is relevant, material, credible, and trustworthy should be received in view of the consequences of the pre-enquete.")
  10. ↑ PC, supra, at para 28
    R v Grinshpun, 2004 BCCA 579 (CanLII), 190 CCC (3d) 483, at para 32
    R v Whitmore, 1989 CanLII 7229 (ON CA), 51 CCC (3d) 294, at p. 296
  11. ↑ PC, supra, at para 29
  12. ↑ PC, supra, at para 30
    Grinshpun, supra, at paras 32to 33
  13. ↑ Glegg, supra at para 43
    Re Bradley et al. and The Queen, 1975 CanLII 766 (ON CA), 24 CCC (2d) 482, 9 OR (2d) 161 (CA), per Arnup JA at p 490
    McHale, supra at para 47
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