Canada: Private Prosecutions In The Public Interest?: Process, Possibilities, And Problems

Last Updated: October 27 2016
Article by Jacob R.W. Damstra

Section 504 of the Criminal Code, R.S.C., 1985, c. C-46. Chances are you've never heard of it. The section is rarely invoked; a number of obstacles stand in the way of its successful application. But it might just become an important provision for any public interest group, civil litigator, or corporate counsel to be aware.

Section 504 allows any person to initiate a private prosecution if he or she believes, on reasonable grounds, that a person has committed an indictable offence.1 The definition of prosecutor in ss. 2 and 785 of the Criminal Code makes it clear that someone other than the Attorney General may institute proceedings to which the Criminal Code applies. In 2002, s. 507.1 was added to the Criminal Code, setting out the procedure for referral of an information laid in a private prosecution – making it abundantly clear persons not involved in law enforcement may commence criminal proceedings.

Again, it is important to emphasize how rarely this procedure for laying a private information is used. Normally, of course, when it comes to criminal charges, private individuals will go to the police or other law enforcement officers with their complaints, and the investigating authorities will provide a vetting process to determine whether an information will be laid. Sometimes a complainant will take matters into their own hands – in a neighbours' dispute over property or some perceived threat, for example – and initiate criminal proceedings on their own, looking for a peace bond or other resolution of their dispute. These minor, private skirmishes often fizzle out without much success or public notice.

It appears, however, there may be an increasing trend in the use of private prosecutions in the public interest. Rather than seeking to settle a private grudge in criminal court, public interest organizations or individuals might seek to draw attention to some alleged criminal conduct and endeavor to hold the accused accountable for those alleged crimes by way of a private information.

This is exactly what MiningWatch Canada did against the Mount Polley Mining Corporation (MPMC), owned by Imperial Metals, and the Province of British Columbia on October 18, 2016. In a press release, MiningWatch Canada claims the negligence of MPMC and B.C. caused "the largest mine waste disaster in Canadian history." MiningWatch Canada's private information is charging MPMC and B.C. with violating ss. 35(1) and 36(3) of the Fisheries Act, R.S.C. 1985, c. F-14, which prohibit all persons from any "work, undertaking, or activity that results in serious harm to fish" that sustain commercial, recreational, or aboriginal fisheries and the deposit of "deleterious substances of any type" into fish bearing waters.

Details of the factual background underlying the private prosecution and the legal position taken by MiningWatch Canada are available in a summary of the prosecution published by MiningWatch Canada.

This post is not intended to comment on the charges against MPMC and B.C., other than to observe the outcome of this proceeding might put another arrow in the quiver of public interest litigants and another risk for corporations and defence counsel to consider and mitigate.

The remainder of this post is a primer on the process, possibilities, and problems of private prosecutions in the public interest.

Process

So how does a private prosecution work? This section describes in broad terms the process that applies generally to private prosecutions. For greater detail, see the detailed judgment of Watt J.A. in R. v. McHale, 2010 ONCA 361.

The subsequent sections comment on some possibilities and problems associated with private prosecutions in the public interest – such as the MiningWatch Canada prosecution initiated against MPMC and B.C.

A private prosecution begins with the swearing of an "information". The person swearing the information (the "informant") must set out the following for each offence charged:

  • the identity of the accused;
  • the particulars of the offence(s) alleged;
  • the sections and legislation under which the charge(s) is being laid.

The information must be made in writing under oath and laid before a Justice of the Peace. Charges may be made in relation to the offence sections in the Criminal Code or offences in any other act to which the Criminal Code applies. This means and offences under federally-enacted legislation, such as the Fisheries Act.

Where the Justice of the Peace is satisfied the information alleges one of the four scenarios enumerated in ss. 504(a)-(d),2 the justice must receive the information.

Section 507.1 governs pre-inquiry hearings, known as a "pre-enquete"3 in private prosecutions. A Justice of the Peace receiving a private information must refer that information to a provincial court judge4 or a designated Justice of the Peace who will consider whether to compel the appearance of the accused at a pre-enquete. The pre-enquete judge or justice must decide whether a criminal prosecution will be commenced. The function of the pre-enquete is to provide a judicial screening process to "avoid burdening the justice system with vexatious litigation, misuse of the criminal process in order to advance a civil dispute, and to protect innocent persons from the stigma of having to appear in court on such matters."5

The pre-enquete occurs ex parte, but the informant must serve the information on the Attorney General and give reasonable notice of the hearing – notice is the second step of a private prosecution; the pre-enquete is the third. The Court of Appeal for Ontario has directed Crown counsel to request the pre-enquete be held in camera.6

The onus is placed on the informant to establish a summons or warrant should issue to compel an accused to attend before the court and answer the criminal charge(s). The informant must demonstrate a prima facie case, requiring some evidence on all of the essential elements of the offence through witnesses and documents.7 The Attorney General will also have opportunity, though not the obligation, to cross-examine, call witnesses, present evidence, or make submissions in order to assist the court in determining whether or not there is a prima facie case.

The judge or justice may issue process, thus commencing a criminal prosecution of the accused, only if he or she is satisfied a prima facie case has been made out on all of the essential elements of the offence and the Attorney General has received reasonable notice and an opportunity to participate.

Once the court makes an order issuing process, Crown counsel may intervene to take over the prosecution or to withdraw the charges.8 However, Crown counsel may enter a stay at any time after an information is sworn.9 Part 5.9 of the PPSC Deskbook provides guidance to federal Crowns' determination whether or not to intervene to withdraw the charges10 or take over a private prosecution.11

If the Crown does not intervene, the private prosecution will continue under the normal rules of criminal procedure. 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 preliminary inquiry and the trial. However, the private prosecutor requires a judge's written consent under s. 574(3) of the Code to prefer an indictment.

Meanwhile, s. 507.1(5) of the Criminal Code tells us if the pre-enquete justice does not issue process to compel the appearance of the accused, or the private prosecutor has not commenced proceedings to compel process within six months, the information is deemed never to have been laid.

The Provincial Offences Act, R.S.O. 1990, c. P.33, s. 23(1) also allows "Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence" to lay an information, and the definition of "prosecutor" in s. 2 of the POA includes someone other than the Attorney General. The Court of Appeal for Ontario has confirmed that a private individual does have a general right to "lay an information in respect of an offence created by a provincial statute", but that such a right may be "superseded by the legislative scheme" of a given Act.12 However, unlike the Criminal Code, the POA does not distinguish the procedure for a private prosecution and a public prosecution under the Act. Thus, the procedure for a process hearing applies generally.13

Possibilities

The House of Lords in England has observed the right of a citizen to institute a prosecution for a breach of the law is "a valuable constitutional safeguard against inertia or partiality on the part of authority".14

MiningWatch Canada contends, in its summary of the prosecution, Parliament has created an incentive for private individuals to enforce the Fisheries Act (and presumably other environmental legislation) "to ensure the protection of public resources such as fish and fish habitat, even if against the Federal and Provincial Crown."

Whether the private prosecutions provisions of the Criminal Code (or the availability of private prosecutions under the POA) are an "incentive" created by Parliament or the legislature to prosecute federal or provincial offences is questionable. But a private prosecution does undoubtedly bring a number of interesting possibilities when it comes to public interest litigation:

  • for alleged offences in remote areas or in relation to which prosecuting authorities are slow to respond, a private information a notice to the Attorney General will bring the situation to the Crown's attention and might create an impetus for investigation and prosecution;
  • where the alleged offence involves the negligence or misfeasance of public officials, the private prosecution provides, as the House of Lords held, a safeguard against partiality;
  • a private prosecution in the public interest – for example, to enforce environmental protection legislation – might avoid standing issues which will arise in public interest civil litigation;
  • a private prosecution does not appear to be prohibited even where there is an ongoing civil action or class action in relation to the same subject matter, or a government action for cost recovery in relation to remediation of the underlying damage;15
  • where a private prosecution is taken over and pursued by the Crown, the resources of the state are brought to bear on the prosecution in the public interest, which might not have otherwise been if a private information were not laid.

The MiningWatch Canada summary of the prosecution identifies two separate incidents which were brought to the courts through a private information under the Fisheries Act and eventually taken over and prosecuted by the Crown: Morton v. Marine Harvest Canada for illegal possession of wild juvenile salmon; and Burgoon v. Executive Flight Centre Fuel Services in relation to a jet fuel spill into Lemon Creek, B.C. Both proceedings demonstrate the possibilities provided by a private prosecution in the public interest.

Problems

Of course, the possibilities of private prosecutions in the public interest are a problem for corporations or other individual defendants who may end up their targets. In such situations, accuseds defending a private prosecution will need to defend it in the same way as a prosecution by the Crown, but may have additional arguments available, given the unique nature and problems associated with private prosecutions. Some potential problems include:

  • additional procedural hurdles to a private prosecution which may not exist in a private civil action, such as the pre-enquete and the requirement to demonstrate a prima facie case and that the prosecution is not frivolous or vexatious;
  • difficulty in conducting an investigation and obtaining some of the necessary evidence;
  • lack of control over the prosecution, as the Crown may intervene or stay the proceedings on its own discretion which is not reviewable "in the absence of some flagrant impropriety on the part of the Crown officers";16
  • the expense and costs of investigating the offence and prosecuting the charges – which are unlikely to be recoverable even if the prosecution is successful, unless the private prosecutor can show entitlement to special costs;
  • the requirement that the private informant or his or her counsel have familiarity with the criminal justice system;
  • the inability to recover damages or seek an order for an injunction or specific performance.

Closing thoughts

Although a private prosecution may be a tool in the toolbox of a public interest litigant, and perhaps a promising one for holding individuals and corporations and government officials accountable to environmental protection or other legislation, the tool may be a double-edged sword. There are at least as many problems facing a private prosecutor as there are possibilities.

But a sophisticated non-governmental organization with a public interest mandate might consider a criminal prosecution of alleged public harms might be interested in the punitive and deterrent effects of criminal prosecutions – instead of, or in addition to, the compensatory or injunctive remedies available through civil litigation. So, counsel for a public interest litigant ought to fully canvas all litigation options, including private prosecution, with their client including the possibilities and problems of each. And in-house or outside counsel for corporations which may be the target of private prosecutions should be aware of the possibility of responding to a private information and ready to defend their client, or retain defence counsel to mount a defence.

Footnotes

1. The section provides:

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.

2. Ibid.

3. Also known as a process hearing, a pre-inquiry, or a referral hearing.

4. Or a judge of the Court of Quebec in that province.

5. Public Prosecution Service of Canada Deskbook, part 5.9 "Private Prosecutions" (March 1, 2014), at 4 [PPSC Deskbook], citing R. v. Friesen (2008), 229 C.C.C. (3d) 97 (Ont. S.C.), at paras. 9-11 [Friesen], and Ambrosi v. British Columbia (Attorney General), 2012 BCSC 1261, at paras. 54-57 [Ambrosi], aff'd 2014 BCCA 123 [Ambrosi BCCA]; see also R. v. McHale, 2010 ONCA 361, at paras. 65 and 74 [McHale].

6. McHale, at para. 48; R. v. Whitmore (1987), 41 C.C.C. (3d) 555 (Ont. H.C.J.), aff'd 51 C.C.C. (3d) 294 (Ont. C.A.); see also Ambrosi BCCA, at para. 31.

7. Ambrosi, at para. 56.

8. McHale, at paras. 59-62, 71-77.

9. Ibid, at paras. 85-86.

10. The Crown will intervene to stay proceedings if it determines either the prosecution lacks evidentiary sufficiency or is contrary to the public interest. The evidentiary standard test and the public interest test are set out in the PPSC Deskbook, at part 2.3 "Decision to Prosecute".

11. Where the charges are well-founded, the Crown may intervene to take control of the prosecution, though there is no obligation to do so. The Crown will consider a number of factors to determine whether to take over the conduct of a private prosecution: 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; 2. the relative seriousness of the offence – generally, the more serious, the more likely it is that the DPP should intervene; 3. there are detailed or complex disclosure issues to resolve; 4. the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity; 5. there is a reasonable basis to believe that the private prosecutor lacks the capacity or the funding to effectively carry the case forward to its completion; 6. 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; 7. 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.

12. Audziss v. Santa, 2003 CanLII 35121 (ON CA), at paras. 27-29 (discussing the Municipal Elections Act); see also, Bussin v. St. Germain, 2009 ONCA 272.

13. As in, for example, R. v. Alrifai, 2008 ONCA 564 (under the Highway Traffic Act); Ontario Realty Corp. v. Sanford, 2003 CanLII 44477 (ON SC) (under the Environmental Assessment Act); R. ex rel. Moogk v. Shouldise, 2010 ONCJ 604, at para. 32: "Procedurally the carriage of Private Prosecutions must be similar to the Criminal Courts where an individual may swear an Information charging another entity with an Offence. Following an ex-partie hearing on the matter, a Justice being satisfied that some evidence is received on all essential elements may refer the matter to a set date court at which point the Provincial Crown will decide whether or not to take carriage of the charge. In some instances where the Crown deems no merit in proceeding with a prosecution, the Crown sometimes will take carriage and then act under its jurisdiction to ask the Court to stay the charge or to withdraw the charge. When the Crown makes the determination not to be involved, then the Informant has the option of continuing with the Prosecution or it may abandon it. Normally, the Crown will make such an assessment on the merits of the case and on the evidence taken in order to decide whether or not they wish to be involved. Each case is assessed on its own merits." (under the Line Fences Act, R.S.O. c. L.17)

14. Gouriet v. Union of Post Office Workers, [1978] A.C. 435 at 477 (H.L.).

15. See Executive Flight Centre Fuel Services Ltd. v. British Columbia (Director, Environmental Management Act), 2015 CarswellBC 382, [2015] B.C.W.L.D. 2427 (Env. App. B.)

16. R. v. Osiowy, (1989), 50 C.C.C. (3d) 189 (Sask. C.A.), at p. 191.

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