Overview of Private Prosecutions In Canada

So you’ve been assaulted by your neighbor, you call the police. The police investigate, and they decide not to lay charges to your chagrin. The neighbor’s wife, for example, gave a statement saying nothing happened and the police don’t believe you. What can you do in this situation? Well, that’s a great question. In Canada, almost all criminal informations or charges are started by the police. It’s a police laid information. Under Section 504 the Criminal Code, however, a private citizen, believe it or not, can attempt to lay a private information and proceed to have it prosecuted. And the examples that happen are often where precisely that the police have investigated and they decide not to lay charges. So the police, in their wisdom, decided there’s not reasonable probable grounds. There’s no way it’s going to fly in court. So what do you do in this situation? Well, I think the first thing you need to do, I think, I think you really should get some advice from a criminal lawyer. Gather all of your witness statements, gather your evidence, and have a criminal lawyer assess it to see if there’s any viability to what you’re saying happened. Mean, if the other side, even if you’re telling the truth, if the other guys cut sides, got five witnesses who says you’re not telling the truth, then there might be no viability to it. I mean, you might want to just give up on the situation, but that’s completely up to you, but it’s important to get advice from a lawyer. So let’s say the lawyer says, Well, look, I think you know, you may have some viability here. What do you do? Then? How do you lay it? Well, you would attend the courthouse and you fill out an application to lay a private information. You want to bring your witness statements, names and lists of all your witnesses, your statement, et cetera. Eventually it’s going to wind up in front of a Justice of the Peace. That’s the judicial official lower than a Judge. It’s called Justice of the Peace. Who’s going to assess your application, assess the evidence, to see if there’s an error of reality to it. To see if the Administration of Justice would be better by not going forward with it, or by going forward. Is there some prospect that it’s a viable charge. For example, so that judicial official, they may decide, yes, I’m going to go forward with this. If an information, so a criminal information gets laid then a police laid information is a criminal information as well. Is the same type of information, except it a charging document and except as a private information. So what’s the next step? So the next step is there’s going to be called, what a pre-enquette, E, N, Q, U, E, T, T, E, I believe, if I’m spelling it correctly, hearing. And that’s where a Justice of the Peace decides whether this is going to actually go, whether it’s going to be presented to the Crown Attorney. And at that pre-enquette hearing you may have to attend, you may have to present your statement to the Justice of the Peace and the Justice of the Peace is actually going to then make a decision whether the case goes to the Crown attorney’s office or not. So, so that’s the next step. So let’s say the Justice of the Peace says, no, well, you’re basically done at that point. You may have some sort of judicial review of that, but that’s becomes very expensive, if that’s indeed warranted at all, but let’s say they say it goes forward. Okay, now it gets into the hands of the Crown Attorney, and in the meantime, a warrant goes out for that person to charge your neighbor so they get notification. But now the prosecution is in the hands of the Crown Attorney, and the Crown Attorney will look at that as well and say, well, I’m going to examine all this. Is there a reasonable prospect of conviction, conviction? That’s the test, by the way, to see if a prosecution goes forward. Is there a reasonable prospect of conviction, if this matter goes forward? If the Crown says, No, they’re not going to go forward. Thing. They all they so that’s the Crown’s decision. They can decide not to go forward with it. They may find it’s not in the best interest of the Administration of Justice. They don’t think it’s the reason prospect of conviction and again to your chagrin the private prosecution ends. So, it’s rarely used. It is used occasionally in Ontario. A lot of things don’t survive the Priyanka stage, because your best bet to get information laid in Canada and Ontario is to go to the police, hopefully they lay it. Once they make that decision, then its kind of colours things a bit, because the just of the piece might say, well, the police already decided this, etc, etc. But there are things that slip through the cracks, and there are private prosecutions. They are typically taken over by the Crown eventually, in Ontario, almost all of them, it’s very rare that a private person who lays a charge actually hires a lawyer to defend it or to prosecute. I should say it’s easier to use the Crown. There’s no cost to it as well as then. So, it is rarely used in the past, and sometimes it’s used for counter charges as well, which I review in another video, but that’s another topic for another day, but there you have it. There’s the basics of the procedure for a privately laid criminal information which occasionally survives a Pre-enquette Hearing and goes to court and prosecuted by the typical government assistant Crown Attorney in Ontario.