Part VI POLICY IN CERTAIN TYPES OF LITIGATION Chapter 26

26 PRIVATE PROSECUTIONS

26.1 Introduction

The relationship between the private citizen, as prosecutor, and the Attorney General, who has exclusive authority to represent the public in court^{Footnote 1}, has been described as follows^{Footnote 2}:

The right of a citizen to institute a prosecution for a breach of the law has been called “a valuable constitutional safeguard against inertia or partiality on the part of authority”^{Footnote 3}. However, this right can be abused. It is sometimes necessary for the Attorney General to intervene and conduct or stay the prosecution to prevent the harms that may flow from such prosecutions, for example: 1) the harm suffered by a defendant who is factually innocent; 2) the harm to the court system caused by a frivolous prosecution^{Footnote 4}.

This chapter explains the law on initiating and conducting private prosecutions. It also explains when the Attorney General of Canada may and should intervene either to conduct or stay such prosecutions.

26.2 Origin of Private Prosecutions

A private citizen's right to initiate and conduct a private prosecution originates in the early common law. From the early Middle Ages to the 17th century, private prosecutions were the main way to enforce the criminal law. Indeed, private citizens were responsible for preserving the peace and maintaining the law^{Footnote 5}:

Because of the increase in courts and cases in the Middle Ages, the King began to appoint King's Attorneys to intervene in matters of particular interest to the King. Intervention took two forms. The King could initiate and conduct certain prosecutions through a personal representative. The King could also intervene in cases begun by a private prosecutor where the matter was of special concern to the King. By intervening, the King's Attorney could then conduct or stop the proceedings^{Footnote 7}. As the English common law developed, the role of Crown law officers grew. Still, private prosecutions were allowed. To this day they are recognized in several English statutes^{Footnote 8}.

26.3 Foundation for Private Prosecutions in Canadian Law

No Criminal Code provision expressly authorizes private prosecutions. Several provisions, however, impliedly recognize such proceedings. Except where the Attorney General's consent is required, section 504 of the Code permits anyone to lay an information. As well, the definitions of “prosecutor” in sections 2 and 785 make it clear that someone other than the Attorney General may institute proceedings. These provisions apply to proceedings under the Code and all other federal acts^{Footnote 9}.

Prior to the 2002 amendments to the Crininal Code^{Footnote 10}, courts had held: a) a private citizen may institute and conduct a prosecution under federal legislation without the knowledge or participation of the Attorney General of Canada;^{Footnote 11} b) clear and specific language is required to abolish private prosecutions under a federal statute.^{Footnote 12}

Pursuant to the 2002 amendments, however, important limitations were introduced on the right of a private citizen to institute proceedings. Section 507.1 of the Code requires a justice receiving such an information to refer it to a judge or designated justice, and requires notice to the Attorney General and an opportunity for the Attorney General to participate in a hearing to determine whether a summons or warrant for the arrest of the accused shall issue. In summary conviction proceedings, the private prosecutor controls the proceedings from start to finish unless the Attorney General intervenes. In indictable matters, a private prosecutor may conduct the trial, including the preliminary inquiry. However, the private prosecutor requires a judge's consent under subsection 574(3) of the Code to prefer an indictment.

26.4 Authority of the Attorney General of Canada to Intervene in Private Prosecutions

At common law the Attorney General could intervene in private prosecutions and either conduct the prosecution or enter a nolle prosequi (the traditional power of the Attorney General to stop proceedings)^{Footnote 13}. Under section 5 of the Department of Justice Act, the Attorney General of Canada is “entrusted with the powers and charged with the duties that belong to the Office of the Attorney General of England by law or usage, insofar as those powers and duties are applicable to Canada”.

The Criminal Code provides that the Attorney General of Canada and Attorneys General of the provinces share responsibility for conducting prosecutions. However, several Supreme Court of Canada decisions have made it clear that the authority of provincial Attorneys General to prosecute under federal statutes, including the Criminal Code, is given by the Code. Their authority does not flow from any constitutional principle based on subsection 92(14)^{Footnote 14} or from some historic role^{Footnote 15}. The provincial prosecutorial role is assigned through legislation by Parliament, not constitutionally entrenched.

Section 2 of the Criminal Code assigns prosecutorial roles as follows:

“Attorney General”

1. with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his lawful deputy, and
2. with respect to
   1. the Yukon Territory, the Northwest Territories and Nunavut, or
   2. proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of a conspiracy or attempt to contravene or counselling the contravention of any Act of Parliament other than this Act or any regulation made under any such Act, means the Attorney General of Canada and includes his lawful deputy.

Under this definition, it follows that if a private individual lays an information, the Attorney General of Canada lacks authority to intervene in the case, whether to conduct or stay the proceedings. This is because the proceedings were not “commenced at the instance of the Government of Canada”^{Footnote 16}.

This lack of authority for the Attorney General of Canada to intervene applies only to prosecutions brought in a province. According to the definition set out above, the Attorney General of Canada has full authority to start and stop proceedings and intervene in private prosecutions brought in the Northwest Territories, the Yukon Territory, and Nunavut.

“Attorney General” is defined somewhat differently for drug prosecutions. Section 2 of the Controlled Drugs and Substances Act states as follows:

“Attorney General” means

1. the Attorney General of Canada, and includes their lawful deputy; or
2. with respect to proceedings commenced at the instance of the government of a province and conducted by or on behalf of that government, the Attorney General of that province, and includes their lawful deputy.

Pursuant to this definition, the Attorney General of Canada has authority to intervene in private prosecutions of drug matters throughout the country.

Another source of the Attorney General’s power to intervene in private prosecutions may be found in section 579.1 of the Criminal Code. This section was added in 1994 to give the Attorney General of Canada authority to intervene in private prosecutions commenced under federal statutes other than Criminal Code, where the provincial Attorney General has not intervened.

Section 579.01 was added to the Criminal Code in 2002 to permit the Attorney General to intervene in the proceedings without staying them. Under this provision the Attorney General may call witnesses, examine and cross-examine witnesses, present evidence and make submissions without actually conducting the proceedings.

26.5 Statement of Policy

26.5.1 Private Prosecutions in the Yukon Territory, the Northwest Territories, and Nunavut

The Attorney General has the responsibility to ensure that all criminal prosecutions are in the public interest. The Attorney General must also ensure that it is appropriate to permit private prosecutions to remain in private hands.

When considering whether to intervene, Crown counsel should consult with the Prosecution Group Head and consider the following:

1. the need to strike an appropriate balance between the right of the private citizen to initiate and conduct a prosecution as a safeguard in the justice system, and the responsibility of the Attorney General of Canada for the proper administration of justice in the territories;
2. the seriousness of the offence – generally, the more serious, the more likely it is that the Attorney General should intervene;
3. whether there is sufficient evidence to justify continuing the prosecution, that is, whether there is a reasonable prospect of conviction based on the available evidence;
4. whether a consideration of the public interest criteria described in Part V, Chapter 15, “The Decision to Prosecute”, leads to the conclusion that the public interest would not be served by continuing the proceedings;
5. whether there is a reasonable basis to believe that the decision to prosecute was made for improper personal or oblique motives, or that it otherwise may constitute an abuse of the court's process such that, even if the prosecution were to proceed, it would not be appropriate to permit it to remain in the hands of a private prosecutor; and
6. whether, given the nature of the alleged offence or the issues to be determined at trial, it is in the interests of the proper administration of justice for the prosecution to remain in private hands.

Whenever the Attorney General intervenes, the decision to continue or stay the proceedings should be made in accordance with the criteria set out in Part V, Chapter 15, “The Decision to Prosecute”.

In some cases, it may be difficult to assess whether there is sufficient evidence to justify continuing the proceedings, because no police investigation preceded the laying of charges. If so, it will in most instances be appropriate for the Attorney General to intervene, request an adjournment, and ask the RCMP to investigate. It may, in some situations, be necessary to stay proceedings while the investigation is conducted. After the investigation, Crown counsel should assess whether to commence proceedings in accordance with the criteria set out in Part V, Chapter 15, “The Decision to Prosecute”. If a decision is reached not to prosecute, subsequent proceedings brought privately should, in the absence of unusual circumstances, be taken over on behalf of the Attorney General and stayed.

26.5.2 Private Prosecutions in the Provinces

As noted above, the Attorney General of Canada has a limited authority to intervene in private prosecutions in the provinces. Where such authority exists, it should be exercised on the same basis as outlined in s. 26.5.1 above.

The Government of Canada may still have an interest in certain proceedings. Many private prosecutions are commenced on the basis of an enforcement scheme found in regulatory enactments such as the Fisheries Act. Charges of this nature ought to be brought to the attention of the Regional Director, as it may be appropriate to bring enforcement or policy concerns to the attention of the Attorney General of the province so that provincial authorities can then make an informed decision about intervening.

26.6 Consultation With Senior Management

Where an issue concerning the conduct or potential termination of a private prosecution needs to be resolved, Crown counsel should refer the matter to the Senior Regional Director who, in cases of particular public interest, should confer with the Assistant Deputy Attorney General (Criminal Law) before making a decision.

26.7 Case References

Re Bradley and The Queen (1975), 9 O.R. (2d) 161 (Ont. C.A.): Where the interests of justice require, the Attorney General may intervene and take over a private prosecution of a summary conviction offence.

MacIssac v. Motor Coach Ind. Ltd., [1982] 5 W.W.R. 391 (Man. C.A.): Since the word “prosecutor” includes the informant or counsel for the informant, it is incontestable that a private prosecution can take place in the absence of intervention by the Crown.

Re Hamilton and The Queen (1986), 30 C.C.C. (3d) 65 (B.C.S.C.): An intervention by the Attorney General in a private prosecution does not contravene section 7 of the Charter.

Campbell v. A.G. of Ontario (1987), 31 C.C.C. (3d) 289; aff'd. 35 C.C.C. (3d) 480 (C.A.): The court cannot review a decision by the Attorney General to stay a private prosecution, absent flagrant impropriety.

Re Faber and the Queen (1987), 38 C.C.C. (3d) 49 (Que. S.C.): A decision to stay does not infringe sections 7 or 15 of the Charter.

Chartrand v. Quebec (Min. of Justice) (1986), 55 C.R. (3d) 97 (Que. S.C.): Ministerial decisions, whether based on a statute, a prerogative, or the common law, are reviewable by virtue of section 32 of the Charter. Therefore, the Attorney General's decision to intervene and stay a private prosecution is also reviewable.

R. v. Cathcart and Maclean (1988), 207 A.P.R. 267 (N.S.S.C.): A superior court judge does not need to approve a private prosecution of a hybrid offence. An order under subsection 504(3) [now subsection 574(3)] of the Criminal Code is required only after the accused has been committed to stand trial on an indictable offence.

Osiowy v. Linn (1988), 67 Sask. R. 215 (Sask. Q.B.), sub nom. R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.): The Attorney General's discretion to intervene and stay a private prosecution was upheld.

Kostuch (Informant) v. Alberta (Attorney General) (1995), 101 C.C.C. (3d) 321 (Alta. C.A.): The court will not interfere with the Attorney General's exercise of discretion to intervene in a private prosecution unless there has been a “flagrant impropriety”.

Werring v. B.C. (Attorney General) (1997), 122 C.C.C. (3d) 343 (B.C.C.A.): An informant seeking judicial review of Attorney General’s decision to stay a private prosecution is not entitled to cross-examine the prosecutor who entered the stay without showing a basis for the belief that such cross-examination would show flagrant impropriety by the Crown.