Private Prosecutions in Canada:
The Law and a Proposal for Change
Peter Burns*
I. Introduction
The role of the prosecutor, whether public or private, is a very
special one in any system of criminal justice. This paper’ is con-
cerned with an examination of the powers and obligations of the
private prosecutor in Canada and with assessing the viability of
retaining such a role in the light of modern judicial developments.2
For the purposes of this study, a private prosecutor is taken to be
an individual, group, or corporation (other than a public authority)
not acting in any public capacity.3 Although theoretically most pro-
secutions are “private” in the sense that they are pursued by various
public officers who have no powers beyond those of the private
citizen, they are not private prosecutions in the sense of the term as
used here 4
Before turning to the Canadian position it is useful to make
reference to the role of the private prosecutor in other judicial
systems. In the United States there is no place for a private pro-
* Professor of Law, University of British Columbia.
1 This essay is based on a paper prepared for the National Law Reform Com-
mission as part of the Criminal Procedure Project’s programme. The writer is
grateful to the Commission, through its Chairman, Mr Justice Hartt, for grant-
ing permission to publish the following material. Of course, the opinions
expressed are entirely those of the writer and do not necessarily reflect the
views of the Commission.
2There has been very little written concerning the private prosecutor
generally, and in Canada there are only two articles on the subject: Kaufman,
The Role of the Private Prosecutor: A Critical Analysis of the Complainant’s
Position in Criminal Cases (1960-61) 7 McGillL.J 102, and Berner, Private
Prosecutions and Environmental Control Legislation: A Study (1972, Dept. of
the Environment, Ottawa).
3The actual prosecutor, of course, will be the individual member of such
group who lays the information.
4Cf. Howard, Criminal Justice in England: A Study in Law Administration
(1931). At p.3, Howard refers to Maitland: “Professor Maitland thought that it
was misleading to speak of the English system as one of private prosecutions.
‘It is we who have public prosecutions’, he wrote, ‘for any one of the public
may prosecute; abroad they have state prosecutions or official prosecutions’.”
McGILL LAW JOURNAL
[Vol. 21
secutor at all.5 There the private individual is confined to the function
of complainant at both the federal and state levels.; France and
Germany8 have adopted systems that exclude private prosecutors,
except in setting the state’s action in motion.
In Scotland, too, a system of public prosecutions pertains: 9
The right and duty of public prosecution in Scotland lies not in the
hands of the police, nor of the jrivate prosecutor (subject to a minor
qualification), but in the hands of the Lord Advocate, who discharges the
responsibilities of his important office through the medium of Crown
Counsel and the Crown Office. It is the Crown Office which in turn con-
trols the Procurators Fiscal who are the Crown Prosecutors in the
Sheriff Courts and the agents of the Crown Office in the investigation of
crime, under the supervision of Crown Counsel. … The ancient right of
a citizen to seek leave, with the concurrence of the Lord Advocate, to
institute a private prosecution himself’ 0 when his own personal interests
5See The Administration of Criminal Justice in the United States (1955,
Am. Bar Foundation), 84-88; Dression, Private Prosecution: A Remedy for
District Attorneys’ Unwarranted Inaction (1955) 65 YaleL.J. 209; Grosman,
The Prosecutor (1969), 13-14; “The Office of the Attorney General”, Report of
the National Associations of Attorneys-General (1971), 11-22.
6 This has led to considerable criticism, particularly where the public pro-
secutor has refused to prosecute. See Dression, ibid. This commentator points
out that in practice thirty states have decided that private attorneys may be
employed to assist the public prosecutor, and it is an open question whether
or not courts have the inherent power to permit private prosecution in
administering justice.
7See Vouin, The Role of the Prosecutor in French Criminal Trials (1970)
18 Am. J. of Comp. L. 483, who discusses the French Code of Criminal Pro-
cedure, 1958.
8 See Jeschek, The Discretionary Powers of the Prosecuting Attorney in West
Germany (1970) 18 Am. J. of Comp. L. 508; Langbein, Controlling Prosecutorial
Discretion in Germany (1974) 41 U.Chi.L.Rev. 439; and Herrman, The Rule
of Compulsory Prosecution; and The Scope of Prosecutorial Discretion in
Germany (1974) 41 U. Chi. L. Rev. 468.
9 See the Justice Report into the Prosecution Process in England and Wales
(1970), 9-13, hereafter referred to as Justice Report, and reprinted in full in
[1970] Crim.L.Rev. 668, 681 et seq.; Lord Cameron, Some Aspects of Scots
Criminal Practice and Procedure (1971, Univ. of Birmingham; a presidential
address to the Holdsworth Club); “The Public Prosecutor in Scotland”, Report
of the Working Pzrty on Public Prosecutions in North Ireland (1971, Govern-
ment of Northern Ireland, Appendix C); Normandy, The Public Prosecutor in
Scotland (1938) 54 L.Q.R. 345.
‘o This is the minor exception referred to in the extract. The Report of the
Working Party on Public Prosecutions in Northern Ireland, ibid., did note
in its Appendix C (III) at 56 that:
The main practical exception to [the absence of private prosecutions] is
that certain statutes confer the right to prosecute for breaches of the
individuals) concerned; but,
statute on private bodies (and private
even in these instances, the concurrence of the public prosecutor or the
1975]
PRIVATE PROSECUTIONS IN CANADA
are directly affected, has not been formally abolished.., but that right has
not been successfully
invoked for over sixty years and today such
applications are practically unknown.”
This highly centralized system of public prosecutions, which re-
moves the investigative (police) function entirely from that of the
prosecutor, is of considerable significance 12 and will be discussed
later in this paper.
By contrast, under the English common law, crimes were re-
garded originally as being committed not against the state but
against a particular person or family. It followed that the victim
or some relative would initiate and conduct the prosecution against
the offender. 13 Although in Continental Europe from the thirteenth
century onwards the adversary system of criminal enquiry was
replaced by the inquisatorial procedure of the canon law, England
retained the accusatory procedure and adapted it to its current
needs. 14 Trial by presentment and indictment superseded the appeal
and that of petty jury encompassed the former trial by battle. The
procedure, however, remained adversary in nature and was visual-
ized as an action between parties, rather than an inquisitorial process
which put the initiation of the proceedings within the jurisdiction
of a public official. 5
Another feature of he English common law was the view that it
was not only the privilege but the duty of the private citizen to pre-
serve the King’s Peace and bring offenders to justice.10 At one
stage “all men were bound to combine themselves in associations
of ten, each of whom was responsible for the good behaviour of the
rest”.’7
court is required if the breach is punishable by imprisonment without the
option of a fine, unless the statute otherwise provides.
11 Lord Cameron, supra, f.n.9, 34.
1 2 This factor was regarded as critical in a recent important British study
recommending the expansion of the role of the Director of Public Prosecu-
tions: Justice Report, supra, f.n.9. The same point was taken by Lord Hunt’s
Advisory Committee on the Police in Northern Ireland 1969; Cmnd. 535 (1969),
34, para.142.
13 Grosman, The Prosecutor, supra, f.n.5, 10.
14 Holdsworth, 3 A History of English Law 6th ed. (1938), 619-621.
‘5 Ibid. See also Spiro, Privacy in Comparative Perspective (1971) 13 Nomos
121, 137-140.
16 In discharge of communal duties. See Dickens, Control of Prosecutions
in the United Kingdom (1973) Int’l & Comp. L.Q. 1, 2.
1T Mathew, The Office and Duties of the Director of Public Prosecutions
(1950), 4. From the fifteenth to the nineteenth century, incidents recurred
involving informers who prosecuted for rewards offered by Parliament and
local authorities. Cases of corrupt police officials and prearranged crimes by
McGILL LAW JOURNAL
[‘Vol. 21
Although the common law upheld the notion of the prosecution
being initiated by a private party rather than a central authority, the
Crown was represented by a “professional attorney””‘ who sometimes
prosecuted cases of special concern to the Sovereign. This function
evolved in 1472 into the role of the Attorney-General of England,
who was granted the power to create deputies to act for him in any
court of record. 19 From the reign of Henry VIII there have been
numerous attempts in England to create a national system of public
prosecutors. 0
No such system, however, was created other than the office of
Director of Public Prosecutions in 1879. His “small department is
responsible for conducting the most serious cases, but the cases
handled in this way are relatively few in number”.2 ‘
Accordingly, the theory of prosecutions is largely unchanged after
seven hundred years. In the words of Sir James Fitzjames Stephen:
In England, and, so far as I know, in England and in some English
colonies alone, the prosecution of offences is left entirely to private per-
sons or to public officers who act in their capacity of private persons
and who have hardly any legal powers beyond those which belong to
private persons. 22
Although in theory prosecutions remain largely in the hands of
private individuals, the development of modern police services led
to real change in practice. In England today private prosecution is
unusual23 not merely because there are official agencies that under-
take them on behalf of the community, but also because statutory
enactments have become increasingly common that require initia-
tion of prosecution by a public officer or the consent of a public
“Thief-takers” reached crisis proportions by 1800: Radzinowicz, 2 A History
of English Criminal Law (1956), 270-346. These were commonly referred to
as the “blood-money cases”.
18 Grosman, supra, f.n.5, 11; Report of the National Associations of Attorneys-
General, supra, f.n.5, 11.
JReport of the National Associations of Attorneys-General, ibid., 12.
,Grosman,
supra, f.n.5, 11; Kurland and Waters, Public Prosecutions in
England, 1854-79: An Essay in English Legislative History (1959) Duke L.J. 493;
Langbein, The Origins of Public Prosecutions at Common Law (1974) 17 A.J. of
Legal Hist. 313.
21 Jackson, The Machinery of Justice in England 5th ed. (1967), 129. For a
full discussion of the Director of Public Prosecution’s role, see Dickens, The
Prosecuting Roles of the Attorney-General and Director of Public Prosecutions
(1974) Pub.L. 50.
22 Stephen, 1 A History of the Criminal Law of England (1883), 493.
2:3 Dickens, supra, f.n.16, 2.
1975]
PRIVATE PROSECUTIONS IN CANADA
official before such a prosecution can be brought . 4 This disparity
between practice and theory was one of the factors influencing the
decision to recommend “a system of public prosecution broadly
following the lines of the Scottish system…” in the Justice Report.”5
But it is significant that the Justice Report did not propose the aboli-
tion of private prosecutions. Instead, “it considers that the right
of private persons to initiate a prosecution should be preserved,
with the reservation that the Department [the proposed Department
of Public Prosecutions] should have the power to take over the
conduct of such a prosecution as it saw fit”.28
II. The Canadian Position
Canadian criminal law is derived from English law both in terms
of substance and procedure. Therefore, except as altered, varied,
modified or affected by the Criminal Code 27 or other federal enact-
ment, the criminal law of England in force in a province immediately
prior to the Criminal Code coming into effect (April 1, 1955) con-
tinues in force.28 Accordingly, “the old English procedure, except
as changed by [the 1955] Code, still stands and decisions on pro-
cedure under the old Code, except as they are rendered inapplicable
by the provisions of the new Code, still stand good”2
The main thrust of this part of this paper must accordingly be
toward determining whether or not the criminal law of England
with regard to private prosecutions has been altered by the terms
of the Criminal Code itself. The general rule in England is a very
simple one: “Under English law there is not the slightest doubt
that a private prosecutor could on 19 November, 1858, and indeed
can at the present day, in the absence of intervention by the Crown,
carry through all its stages a prosecution for any offence.” 30 Bearing
in mind that “there is no clear statutory provision –
federal or pro-
vincial – which expressly and directly either affirms or denies the
24 Ibid., 3.
25 Supra, f.n.9.
20 Ibid., 681.
27Criminal Code of Canada, R.S.C. 1970, c.C-34; as amended by R.S.C. 1970,
c.11, cA4 (1st supp.); R.S.C. 1970, c.2 (2nd supp.); S.C. 1972, cc.13 and 17; and
S.C. 1973, cc.38 and 50.
28 S.7(2) Cr.C.
29 R. v. Schwerdt (1957) 27 C.R. 35, 38 per Wilson J. (B.C.S.C.).
30 Ibid., per Wilson J. citing Stephen’s Criminal Laws of England, supra,
f.n.22.
McGILL LAW JOURNAL
[Vol. 21
to what extent does the
right to conduct a private prosecution”,”
English position apply in Canada? Finding the answer to this question
requires analysis of the law with reference to the ordinary criminal
process .32
(a) Laying the Information
All criminal proceedings are initiated by the laying of an inform-
ation 3 3 pursuant to s.455 of the Code. That provision states:
Anyone who, on reasonable and probable grounds, believes any person
has committed an indictable offence may lay an information in writing
and under oath before a Justice … .34
A justice is obliged to take the information3
5 if all the formal re-
quirements are met; if he refuses on the ground that he has no
jurisdiction, his decision is reviewable, the matter being a question
of law.”‘
It is interesting to note at this point that pursuant to s.2 of the
Code, the term “prosecutor” means “the Attorney-General or, where
the Attorney-General does not intervene, means the person who
institutes proceedings to which this Act applies, and includes counsel
acting on behalf of either of them”. Under Part 24 of the Code,
concerned with summary conviction procedure, the term “informant”
is defined to include a person who lays an information. In Canada
the vast majority of informations are laid by police officers at the
complaint of a private individual. This is significant, for if the
informant is not a witness to the events constituting the alleged
offence, he must have reasonable and probable grounds for his belief
that it was committed by the accused. Thus, if he is acting on in-
formation, the “informant” must ensure that it is objectively reliable.
No material interest of the informant needs to have been affected
to entitle him to lay the information; 37 it may be laid in his own name
31 Berner, supra, f.n.2, 3. There are specific exceptions; see, e.g., s.40(2) of
the Wildlife Act, R.S.M. 1970, c.W140, which refers to private prosecution as
the mode of enforcement.
*32 This process also pertains vis-a-vis provincial offences and offences under
by-laws.
33 Other than “preferred” indictments under ss.505 and 507 Cr.C.
4The same is true of summary conviction offences as a result of s.723 of
the Code.
35 Berner, supra, f.n.2, 4.
36 The King v. Meehan (No. 2) (1902) 3 O.L.R. 567, 5 C.C.C. 312 (Ont. H.C.).
37 Berner, supra, f.n.2, 6.
19751
PRIVATE PROSECUTIONS IN CANADA
rather than that of the Crown;38 and it need not state that it is “for
and on behalf of Her Majesty the Queen” 3 9
(b) Appearance by the Accused
Once the information has been laid, the accused is brought before
a court to answer the allegations contained in it by the issuance
of either a summons or warrant pursuant to s.455.3 of the Code.
These provisions require a justice to hear the informant’s allegations
and any evidence of witnesses where he considers it desirable or
necessary to do so. He is empowered to issue a summons or warrant
“where he considers a case for so doing has been made out”.40
This power to issue a summons or warrant has been des-
cribed as “a matter that is wholly within [the justice’s] discretion.
Even if the [justice] were to make an erroneous determination on
the law in exercising that discretion, mandamus cannot lie.”4′
Accordingly, a prosecutor is unable to require a justice to issue
either process to compel the accused’s attendance in court4 2 This
discretion also applies to the issuing of a warrant or summons to
compel attendance at a hearing where the accused has been given
an appearance notice or promise to appear under the bail provisions
of the Code.4 3
It is conceivable that a justice may refuse to issue process after
receiving an information from a private prosecutor. The private
prosecutor may then either attempt to obtain such process from
38There had been some doubt as to this expressed by Kaufman, supra, f.n.2,
102-113, based on older Quebec decisions. But the decision of the Manitoba
Court of Appeal in Mandelbaum v. Denstedt (1968) 5 C.R.N.S. 307, after a
careful analysis of the case law, concluded that an information could be laid
in the name of the prosecutor without reference to the Crown. It is an
open question, though, as a result of this case whether or not the prosecution
can be carried on in the name of a private prosecutor alone. See also Usick v.
Radford [1974] 1 W.W.R. 191 (Man. C.A.).
39 Mandelbaum v. Denstedt, ibid.
40 S.455.3(1)(b) Cr.C.
41 Evans v. Pesce and Attorney General for Alberta (1969) 8 C.R.N.S. 201, 214
per Riley 1. (S.C. Alta.).
42 See also: R. v. Doz (1968) 5 C.R.N.S. 86; In re Parke (1899) 30 O.R. 498,
20 O.W.R. 30, aff’d. 20 O.W.R. 244;
3 C.C.C. 122; Broom v. Denison (1911)
Blacklock v. Primrose [1924] 3 W.W.R. 189; and R. v. Jones ex p. Cohen
[1970] 2 C.C.C. 374 (B.C.S.C.).
43 S.455.4 Cr.C.
McGILL LAW JOURNAL
[Vol. 21
another justice through the same information or by swearing out
another information. 44
(c) The Hearing
The next stage in the proceedings is the hearing of the allegations
against the accused.
(i) Summary Conviction Offences 45
All summary conviction offences 40 are dealt with by the pro-
cedure laid down in Part 24 of the Code. It is relatively clear that
“there is nothing in [Part 24 of the Code] which bars the basic right,
derived from English law, of a private citizen to conduct a private
prosecution”.
47
This is because “prosecutor” as defined in s.720(1) means “an
informant or the Attorney-General or their respective counsel or
agents”. 48 The use of the disjunctive term “or” clearly indicates the
situation may arise where the Attorney-General or his agent is not
a party to the proceedings. 49 Under s.736(3)
the evidence of the
44 There is authority to suggest that the same information cannot be taken
to another justice: Barrick v. Parker (1963) 45 W.W.R. 697 (Sask. Q.B.); but
this view was not taken in the later case of R. v. Southwick, ex parte Gilbert
Stell Ltd. [1968] 1 C.C.C. 356 (Ont. C.A.). In this case no reference was made
to the Barrick decision. This writer agrees with Berner, supra, f.n.2, 8, that
the approach in the Southwick case is preferable, although it is not a real
issue since another information can be sworn out by the prosecutor.
45 See Kaufman, supra, f.n.2, 103-104; Berner, supra, f.n.2, 8-10.
4 6 These include all provincial offences and indictable offences
triable
summarily at the discretion of the prosecutor; see R. v. Seward (1966) 48 C.R.
220 (Yukon Terr. M.C.); R. v. Paulovich (1966) 49 C.R. 21 (Alta. S.C.). If the
prosecutor at arraignment does not indicate his choice, he is deemed to
have chosen to proceed by way of summary conviction: R. v. Mitzell (1951)
14 C.R. 170 (B.C.S.C.).
47R. v. Schwerdt, supra, f.n.29, 4041 per Wilson J. (B.C.S.C.). See also Re
McMicken (1912) 3 W.W.R. 492 (Man C.A.).
48 Kaufman, supra, f.n.2, 103-104, points out a limitation existing in Quebec
whereby, as the result of provincial legislation, it is an offence for persons
other than advocates to plead before any court. The term “prosecutor” is
also defined in s.2 of the Criminal Code to include private prosecutors. This
definition applies to indictable proceedings.
49 See e.g., R. v. Mcllree [1950] 1 W.W.R. 894 (B.C.C.A.), where a prohibition
application was rejected when sought on the ground that an appeal notice had
not been served on the Crown and merely on the private prosecutor. It was
significant here that the Court found that the Crown, through its actions, had
shown that it did not consider itself to be a “party” to the proceedings.
1975]
PRIVATE PROSECUTIONS IN CANADA
witnesses for the prosecutor must be taken by the summary con-
viction court where the accused pleads not guilty, and under s.737
the “prosecutor” is entitled “personally to conduct his case” and
may examine and cross-examine witnesses himself or by counsel or
agent. Since a prosecutor is the informant and thus a private person
where the Attorney-General or his agent does not intervene, it follows
that such private person can personally prosecute the case summarily
or through counsel or an agentY
Whether or not the prosecution can be carried out in the name
of the private prosecutor is a vexed question. It has been shown that
the information may be laid in the name of the private prosecutor
whereas, of course, the summons or warrant is in the name of the
Crown. But what of the prosecution itself? There is authority to
suggest that in Quebec at least proceedings for summary conviction
offences may be conducted in the name of the private prosecutor,51
with conflicting authority in other jurisdictions. 2
The matter may be resolved by analyzing the meaning of
in the context of criminal proceedings. In R. v.
“prosecution”
DevereauxY’ the Ontario Court of Appeal took the following view:
… The distinction between the information and the summons
is an
essential one and one which should be readily apparent. The information
is the subject’s remedy to bring to the attention of the Sovereign the
alleged offence against the Sovereign. The summons is the Sovereign’s
5OSee R. v. Stoopnikoff (1966) 47 C.R. 341 (B.C.C.A.); R. v. Dzurich [1966]
2 C.C.C. 196 (Sask.- C.A.); and R. v. Devereaux (1965)
48 C.R. 194 (Ont.
C.A.). Berner, supra, f.n.2, 13, points out that there is some authority to indicate
that an informant has no status to proceed beyond laying an information. But
in the light of the authorities just referred to, as well as the unambiguous
wording of s.737 Cr.C., this view can no longer be sustained.
51 Gagnon v. Morin (1956) 116 C.C.C. 104 (Que. S.C.).
02 Beauvois v. The Queen (1956) 24 C.R. 365 (S.C.C.). This case seems merely
to be authority for the proposition that where a magistrate is exercising
absolute jurisdiction, no formal indictment is necessary to proceed with an
otherwise indictable offence. However, TaschereauJ. does appear to have
adopted the rule that criminal prosecutions must proceed in the name of the
Crown. This would appear to mean that provincial offences do not need to be
so designated. Campbell v. Sumida (1965) 45 C.R. 198 (Man. C.A.) appeared to
take this view too, but the recent decision of the Manitoba Court of Appeal,
Usick v. Radford, supra, f.n.38, decided that Campbell’s case was no longer
authoritative. In Usick an information sworn out by the private prosecutor
in his own name was held not to be invalid. The justice before whom it was
sworn issued a summons against the defendant “in Her Majesty’s name”. It
is interesting to note that this case itself was an appeal by way of stated
case to the Manitoba Court of Appeal and was brought in the names of the
private prosecutor and the defendant without reference to the Crown.
53 (1965) 48 C.R. 194.
McGILL LAW JOURNAL
[Vol. 21
act in calling the accused before her “justice”. The “prosecution” com-
mences when the “justice” issues the summons addressed to the accused.
Viewed from this angle it is clear that the laying of an information does
not entail any act on the part of the Sovereign and is not required to
be laid in the name of the Sovereign; it is equally clear that by the
summons issued under the Criminal Code or the Summary Convictions Act
…
the Sovereign intervenes, and the proceedings are carried on in the
name of the Sovereign.54
If this perspective of the commencement of the prosecution is
adopted, then the question of style of action becomes meaningless
since as a practical matter55 all criminal and quasi-criminal actions
are commenced by summons or warrant. Through these processes
the Crown’s interest is indicated and such proceedings are notionally
carried on in the name of the Crown. The practice of styling docu-
ments in the name of the Crown or even in conjunction with the
Crown would on this reasoning be largely ex abundanti cautela0
The same reasoning would apply equally to provincial offences that
are initiated by warrant or summons.
Under s.734 of the Criminal Code, where the prosecutor does not
appear for the trial, the court has no jurisdiction to proceed in his
absence. It must either dismiss the charge or adjourn to such other
time and on such terms as it considers proper.
(ii) Indictable Offences
It is in this area that a strong argument can be made in support
of the view that the common law has been “altered, varied or
modified” so as to make inroads in, if not replace, the common law.
The common law is clear:
Under English law there … is not the slightest doubt that a private
prosecutor.., can at the present day in the absence of intervention by the
Crown, carry through all its stages a prosecution for any offence….57
The provisions in the Criminal Code dealing with the disposition of
indictable offences differ in many respects from those subsisting in
England, some of them being apparently inconsistent with the theory
that a private prosecutor may carry the matter forward. There are
three alternative modes of trial of indictable offences:
54 Ibid., 197 per Kelly J.A. (emphasis added).
.5 In theory, at least, it is possible for an accused to appear voluntarily to
answer to an information with neither process being issued.
56 Presumably, in the light of R. v. McIllree, supra, f.n.49, at least so far as
provincial offences are concerned, the Crown can indicate that it does not
regard itself as a “party” to the proceedings, even though the summons
was in the name of the Crown on the information of the private prosecutor.
57 R. v. Schwerdt, supra, f.n.29, 38.
1975]
PRIVATE PROSECUTIONS IN CANADA
(c)
(a)
(b)
trial before a judge and jury;58
“speedy trial” without a jury but before a judge as defined
in Part 16;59 and
summary trial before a provincial court judge or magistrate.60
If the trial is to be before a judge and jury or a speedy trial, a
preliminary hearing is first held.61 Under sections 496 and 504 to 507
of the Criminal Code, an indictment is necessary in such cases.
No such formal indictment is necessary if the accused is being tried
summarily.
62
In R. v. Schwerdt 63 Wilson J. concluded that the rights of the
private prosecutor vis & vis the different modes of trial of an in-
dictable offence were:
(1) On summary trial before a magistrate, the private pro-
secutor is heard as of right.6
(2) A preliminary hearing may be conducted by a private pro-
secutor.65 This conclusion may be drawn from the term “prosecutor”
as used in Part 15 of the Criminal Code, dealing with preliminary
hearings. The meaning is that laid down in s.2 of the Criminal Code
which, as was noted when dealing with summary conviction offences,
includes a private prosecutor.
(3) On “speedy trial before a judge he cannot be heard unless
the Attorney-General or the clerk of the peace prefer a charge, or
the Attorney-General allows him to prefer a charge”.6 This is because
under s.496 of the Criminal Code, where the accused elects speedy
trial “an indictment shall be preferred by the Attorney-General or
his agent, or by any person who has the written consent of the
58 Ss. 427 and 484 Cr.C.
59 Ss. 484, 488 and 489 Cr.C.
60 Ss. 483, 484 and 487 Cr.C. The procedure adopted is that laid down under
Part 16 of the Criminal Code
01 Under Part 15 of the Criminal Code. No preliminary hearing is necessary
where an indictment has been preferred pursuant to ss.505 and 507 Cr.C.
62 R. v. Beauvois, supra, f.n.52. If the accused is being tried under Part 16
of the Criminal Code, the private prosecutor is entitled to be present at all
times during the trial, and even if the accused proposes to plead guilty, the
justice cannot proceed in his absence. Such private prosecutor is entitled to
call evidence in aggravation or mitigation: see In re McMicken, supra, f.nA7.
63 Supra, f.n29, 46.
64 See Re McMicken, supra, f.n.47. We have already dealt with the provisions
of Part 24 of the Criminal Code that support this conclusion as regards
summary conviction offences.
65 R. v. Schwerdt, supra, f.n.29, 40; unless, of course, the Crown has in-
tervened.
66 Ibid., 46.
McGILL LAW JOURNAL
[Vol. 21
Attorney-General, and in the Province of British Columbia may be
preferred by the clerk of the peace”. The language is mandatory
and only in the event of the Attorney-General so permitting can the
private prosecutor personally pursue the case. He can attempt to
persuade the Attorney-General or clerk of the peace to lay the in-
dictment and then proceed with the case himself. If such an
indictment is not laid, the matter rests there0 7
(4) On trial by judge and jury the private prosecutor may be
heard by leave of the court.08 Wilson J. reached this conclusion
largely through the combined effect of the term “prosecutor”
appearing in a number of sections of Part 17 of the Criminal Code
(such term including “private prosecutor” under s.2 of the Code)
and s.507(2), whereby “an indictment under subsection (1) may be
preferred by the Attorney-General or his agent, or by any person
with the written consent of a judge of the court or of the Attorney-
General, or in any province to which this section applies,0 9 by order
of the court”. Wilson J. held that this provision, together with the
former s.558 of the 1955 Criminal Code which distinguished bet-
ween “the Attorney-General or Counsel acting on his behalf”,70 were
conclusive in favour of the private prosecutor’s right to proceed
in jury trials. The learned Judge was of the view that we must start
with “the premise that a private prosecution is lawful unless for-
bidden”7′ and that no clause in Part 17 forbids such a prosecution
either expressly or by necessary implication.2
Wilson J. was also of the opinion that “if the Court can allow a
citizen to prefer an indictment (pursuant to s.507(2)) it must also
allow him to prosecute on it, otherwise the provision has no practical
usefulness”.73 It should be noted that the indictments preferable
under s.507(2) of the Criminal Code may be laid “even in cases
wherc there was no preliminary enquiry or where the accused was
liberated at the enquete”.7 4
67 Berner, supra, f.n.2, 13.
68 R. v. Schwerdt, supra, f.n.29, 46.
‘ The non-grand jury provinces: New Brunswick, Quebec, Manitoba, Sas-
katchewan, Alberta and British Columbia; as well as in the Yukon Territory
and Northwest Territories.
70 This section has been replaced by s.578 Cr.C., where only
the term
“prosecutor” is used. It does not reduce the force of Wilson J.’s argument.
71 R. v. Schwerdt, supra, f.n.29, 41.
72 There are provisions dealing with defamatory libel that specifically ack-
nowledge the role of the private prosecutor. See ss.566 and 656 Cr.C.
73 R. v. Schwerdt, supra, f.n.29, 41.
7 Kaufman, supra, f.n.2, 106-107; see R. v. Beaudry [1967] 1 C.C.C. 272
(B.C.C.A.) for a full discussion of this matter.
1975]
PRIVATE PROSECUTIONS IN CANADA
R. v. Schwerdt” was concerned with a finite issue: in a prohib-
ition application, can a private prosecutor conduct a summary trial
or preliminary enquiry relative to an indictable offence? In affirma-
tively answering these questions, Wilson J. was indulging in extensive
obiter dicta (indeed he specifically acknowledged this) ,7 but his is
the only judicial attempt based on a complete analysis of the Code
provisions to rationalize the private prosecutor’s role under the Code.
It must also be borne in mind that his fourth conclusion concerning
the right of the private prosecutor to proceed with jury trials is based
only on the Code provisions peculiar to the provinces that have
abolished the grand jury. But there seems to be little real difference
in this regard between the two systems.7 7 Under s.505 of the Criminal
Code, a bill of indictment may be preferred by the Attorney-General
or anyone at his discretion or anyone who has the written consent of
the Attorney-General or the written consent of a judge78 of a court
constituted with a grand jury or of the order of a court constituted
with a grand jury. Section 504 grants a prosecutor the power to
prefer a bill of indictment against an accused as regards any charge
founded on facts disclosed at the preliminary hearing.
Schwerdt79 has been criticized for not adopting the view that
the provisions of the Criminal Code relating to trial procedure, at
least other than summary trial, have not altered or varied the com-
mon law to the point where a private prosecutor does not have the
right to conduct- indictable matters, other than defamatory libel.8′
Indeed, the conclusions drawn by Wilson J. appear arbitrary in
relation to each other. Why should a private prosecutor’s ability to
conduct his case turn on the mode of trial which may be determined
by the accused himself? Yet, as Berner has pointed out, “it is difficult
to find fault with the learned judge’s reasoning”8 2
75 Supra, f.n29.
76 R. v. Schwerdt, ibid., 42.
77The only difference seems to be that before a bill of indictment can be
preferred where a preliminary hearing has not been held or has been held
and the accused discharged, the consent of a judge or the Attorney-General
must be obtained: s.505(4) Cr.C.
78See Tremeear’s Annotated Criminal Code 6th ed. (1973), 838-840, for a
is not
the judge’s exercise of discretion
complete survey of the cases;
appealable.
10 Which, after all, is only a decision of a court of first instance.
80 Kaufman, supra, f.n2, 113.
8lSee also LagardeJ., Supplement au Nouveau Code Criminel Annotd
(1958), 89, referred to by Kaufman, supra, f.n.2, 113.
82 Supra, f.n.2, 13.
McGILL LAW JOURNAL
[Vol. 21
(d) Appeals
The area of appeals and the private prosecutor gives rise to a
change of emphasis that was not apparent when dealing with trial
matters. Within the framework of the trial procedure an attempt
has been made to ascertain whether or not the common law rights
of the private prosecutor had been altered by the Criminal Code.
The conclusion reached, largely on the reasoning in Schwerdt, was
that the common law had been altered so far as indictable pro-
ceedings were concerned. But with appeals, “it is a well-established
principle that there is no inherent right to appeal from the decision
of any court and that such right exists only when it is expressly
given by a statute”.8 3 This has a practical effect, as one commentator
has concluded:
… [Wihere it is necessary to draw inferences from the legislation one
must start in the one case [trial proceedings] with a kind of presumption
that private prosecution is permissible unless excluded; but in considering
the rights of appeal, the presumption is reversed, and it must be assumed
that no such right exists unless it is expressly conferred.84
What then are the statutory rights of appeal under the Code and
do they confer “standing” on a private prosecutor? Summary con-
viction appeals are dealt with under the provisions of s.748 of the
Criminal Code. Under paragraph (b) “the informant, the Attorney-
General or his agent” may appeal from an order dismissing an
information or against sentence. It follows that this provision does85
confer on a private prosecutor the right to appeal against dismissal
of the action or the sentence imposed.8 6 No reference to the Sovereign
needs to be made where an informant is appealing.Y
The situation is quite different, however, when dealing with
indictable offences. Only the person convicted88 or the Attorney-
83 Tremeear’s Annotated Criminal Code, supra, f.n.78, 1547, citing a dictum
by HallJ. in R. v. Joseph (1900) 11 K.B. (Que.) 211: “An appeal is not a
general or common law right. It is an exceptional provision enacted by
statute, and, to be availed of, the conditions imposed by the statute must
be complied with…”.
84 Berner, supra, f.n.2, 18.
85See Tremeear, supra, f.n.78, 1550, and its supplement
(1972), 370-371.
The same right is conferred on a private prosecutor in relation to appeals by
way of stated case under s.762 Cr.C.
86 Berner, supra, f.n.2, 17, considers the private prosecutor to have the
right to also appeal against conviction. Although this power is confined to
the defendant under s.748(a) of the Criminal Code, a private prosecutor
(informant) may under s.748(b) appeal from an order dismissing an
information or against the sentence passed upon the defendant.
87 R. v. Allchin [1972] 2 O.R. 580; this case concerned dismissal of an
information.
88 S.603 Cr.C.
19751
PRIVATE PROSECUTIONS IN CANADA
General or counsel instructed by him89 have standing to appeal
to a Court of Appeal or the Supreme Court of Canada.90 These
provisions in their terms do not grant a private prosecutor the
power to pursue an appeal. Berner puts forward the view that:
as represented by the Attorney-General –
… [I]t may be considered a reasonable compromise between the interest
of the private prosecutor in pursuing an accused, the interest of an
accused in being free from unwarranted harassment, and the interest
in seeing that
of the state –
justice is done. The claim of the private prosecutor is satisfied by allowing
him to ensure that the accused is put on trial. The accused is protected by
being allowed to appeal in any event, where he is convicted; and, where
he is acquitted, by being freed from the prospect of an appeal by the
prosecutor personally. And the interest of the state is protected by allow-
ing the Attorney-General his right of appeal in any case, whether a private
prosecution or not.91
This is a fair rationalization of a clearly anomalous situation.
But it is likely to be small comfort to an unsuccessful prosecutor in
proceedings on indictment, who has a legitimate ground of appeal,
to learn that his interest ceases with the trial of the accused.92
However, one thing is clear: a private prosecutor has no standing
in appeals other than from summary conviction proceedings.
It would also seem that so long as the Crown has not intervened,
the private prosecutor as a party can proceed to the extraordinary
remedies in summary conviction matters but is unable to so proceed
concerning those indictable offences which he may not pursue. In
those indictable offences which the private prosecutor can pursue,
the Crown is rendered a party for this purpose. 93
(e) Miscellaneous
(i) Intervention by the Crown
As has been earlier indicated, the power of a private prosecutor
to pursue a prosecution is subject to the Crown’s decision to
“intervene”. Intervention can be of two kinds:
(1)
Intervention for the purpose of exercising control over the
course of the prosecution at a public level. In R. v. Leonard’ Kirby 1.
89 S.605 Cr.C.
90 Ss. 618-621 Cr.C.
91 Berner, supra, f.n2, 18.
92 The protection of the accused is extended in any event by s.612 Cr.C.,
granting an appeal court the summary power to terminate frivolous or
vexatious appeals. This is largely nullified by s.610(3), whereby the appeal
court has no power to award costs.
93 See R. v. Knowles and R. v. Wilson (1913) 5 W.W.R. 20 (Alta. S.C.).
94 (1962) 37 C.R. 374 (Alta. S.C.); see also R. v. Dick (1968) 4 C.R.N.S. 102
(Ont. H.C.).
McGILL LAW JOURNAL
[Vol. 21
took the view that the provincial Attorney-General as chief law
enforcement officer had an inherent power to intervene and with-
draw an information alleging theft laid by a private prosecutor. This
discretion to withdraw is judicial in nature but the courts are most
reluctant to interfere with an Attorney-General’s exercise of it.”5
Such a withdrawal by an Attorney-General is not in conflict with
the provisions of ss.l(b) and 2(e) of the Canadian Bill of Rights.0
It is debatable whether or not the Crown can intervene to pursue
the prosecution although, since the rationale for all such intervention
at common law is “to prevent a private prosecutor, in case of abuse
or unjustified proceedings against any of [the Crown’s] subjects,
from perpetrating an injustice”,9 7 there seems no reason in principle
why this should not be the case.
But does the power to intervene and withdraw an information
lie in the Attorney-General for both summary conviction and indict-
able offences? Leonard was concerned with an indictable offence and
this class is clearly susceptible to such intervention as a result of
the meaning of the term “prosecutor” in s.2 of the Criminal Code:
“prosecutor” means the Attorney-General, or where the Attorney-General
does not intervene, means the person who institutes proceedings ….
This is the definition applicable to Parts 15 and 16 of the Criminal
Code and clearly envisages intervention by the Attorney-General;
where the Attorney-General does intervene, he or his agent becomes
the prosecutor and the private prosecutor has no standing.
On the other hand, Part 24 of the Criminal Code, dealing with
summary conviction, has its own definition of prosecutor:
“prosecutor” means an informant or the Attorney-General or their res-
pective counsel or agents.0 8
There is no specific mention of the power of intervention by the
Attorney-General in this provision. But can it be said that this
omission necessarily excludes such power? Since at common law
such power was said to exist,9 it can be argued that it has not been
95 R. v. Weiss (1915) 7 W.W.R. 1160, 23 C.C.C. 460 (Sask. S.C.).
96 S.C. 1960, c.44; R. v. Leonard, supra, f.n.94, 381-382.
97 Campbell v. Sumida, supra, f.n.52, 39 per Miller C.J.M. This is without
real significance since the Attorney-General could enter a stay of proceedings
and reinstitute proceedings if he was of the opinion the private prosecution
was abusive but the proceedings should be taken against the accused. It
should be noted that Campbell’s case is no longer authoritative in so far as
style of action is concerned: Usick v. Radford, supra, f.ns. 38 and 52.
98 S.720(1) Cr.C.
99 See the cases cited by Kirby J. in R. v. Leonard, supra, f.n.94.
19753
PRIVATE PROSECUTIONS IN CANADA
excluded by this definition.'” This view is strengthened when the
role of the Attorney-General as chief law enforcement officer is
examined. It can hardly be argued that the only prosecutions subject
to abusive practices by private prosecutors are those brought by way
of indictment. This being so, then it can hardly have been Parlia-
ment’s objective to remove from the Attorney-General the capacity
to control such practices, when he is otherwise under an obligation
to do so.
(2)
Intervention in order to stay proceedings. The power to
enter a stay of proceedings,'”‘ which is vested in the Attorney-General
or counsel instructed by him, is regarded as being of particular
social value where abusive private prosecutions have been initiated:
The usual occasion of granting a nolle prosequi or a stay of proceedings
is either where in cases of misdemeanour a civil action is pending for the
same cause … or where any improper or vexatious attempts are made to
oppress the defendant, as by repeatedly preferring defective indictments
for the same supposed offence … or if it is clear that an indictment is
not sustainable against the defendant …. 102
Thus, where an Attorney-General deems it advisable he may order
a stay of proceedings to prevent the private prosecutor from pursuing
his cause of action. The term “Attorney-General” in this context
is broadly confined to a provincial Attorney-General (or Solicitor-
General) as a result of s.2:
“Attorney General” means the Attorney General or Solicitor General of a
province in which proceedings to which this Act applies are taken and,
with respect to (a) the North West Territories and the Yukon Territory,
and (b) proceedings instituted at the instance of the Government of
Canada… means the Attorney General of Canada.
Accordingly, only in those situations where the Attorney-General of
Canada has initiated and is proceeding against an accused under a
federal statute (other than the Criminal Code) is it theoretically’0 3
possible for him to intervene. 0 4
100 In any event, today even summary conviction offences are subject to
a stay of proceedings: s.732.1 Cr.C.
101 S.508 Cr.C. (indictable offences) and s.732.1 Cr.C. (summary conviction
offences). This was known as nolle prosequi at common law. See R. v. Beaudry,
supra, f.n.74.
102Archbold, Criminal Pleading and Practise 30th ed., 111, cited in Tremeear,
supra, f.n.78, 843.
‘0 3 Berner, supra, f.n.2, 28, raises doubts as to the constitutional validity of
this outside the territories mentioned.
104 Unless the matter takes place in the Northwest Territories or Yukon
Territory.
McGILL LAW JOURNAL
[Vol. 21
(ii) Costs of Proceedings’ 0 5
At common law the general principle relating to costs in litigation
is that the successful party to the proceedings is entitled to costs. 00
But there are exceptions to this rule, including one relating directly
the Crown neither pays nor receives costs.01
to criminal cases:
This subsidiary rule still applies today, subject to statutory modifica-
08
tion.1
The Criminal Code contains a number of such modifications, in-
cluding the power to award costs to an accused in summary convic-
tion matters. 10 9 But no such power exists to award costs on the
hearing of indictable offences, and appeal courts are specifically
precluded from making such awards.”0 In practice costs are seldom
awarded.”‘ Again, there is no uniformity of practice discernible in
the cases relating to the extraordinary remedies in Canada.” 2
At the present time, then, one of the primary deterrents to
private prosecutions under the Criminal Code and other federal
105 See Burns, Research Paper for the National Law Reform Commission
in Relation to the Matter of Costs in Criminal Cases (October, 1972).
‘0 6 In expensarum causa victus victori condemnandus est. For a short
history of the development of costs, see Holdsworth, 4 A History of English
Law, supra, f.n.14, 536-538.
107 3 Blackstone’s Commentaries (1857), 400, note 60.
108 See e.g., British Columbia which has given the subsidiary rule statutory
force: Crown Costs Act, R.S.B.C. 1960, c.87, s.2(1); whereas in Ontario, New
Brunswick and Manitoba, the common law has altered the subsidiary rule
to grant courts the power to award costs against the Crown in provincial
offences: R. v. Guidry (1965) 47 C.R. 375, [1966] 2 C.C.C. 161 (N.B.C.A.). In R.
v. Adventure Charcoal Enterprises Ltd. (1972) 9 C.C.C. (2d) 81, the Ontario
High Court quashed an order to pay costs made against a successful private
prosecutor. The provincial court judge had made the order on the ground
that the prosecution “served no useful purpose”.
109 S.744(1)(b) (trial), s.758 (trial de novo), s.766 (stated case) and s.610(3)
(appeals to the Court of Appeal).
110 S.610(3) Cr.C. The only exceptions provided for are cases of defamatory
libel (ss.656 and 657) and where the accused has been misled or prejudiced
in his defence by a variance, error or omission in an indictment or a count
thereof (s.529(5)).
111 See Burns, Research Paper, supra, f.n.105, 119-125.
112 There is a conflict of judicial view on the question whether or not pro-
vincial courts can make rules under s.438 of the Criminal Code authorizing
the imposition of costs or whether their power is confined to the regulation
of costs authorized by other substantive laws. In British Columbia (Re
Christianson (1951) 3 W.W.R. 133 (B.C.S.C.)) and Ontario (Re Sheldon (1972)
8 C.C.C. (2d) 355 (Ont. H.C.)), the view is that the courts do not have the
power to make rules, whereas in Saskatchewan, the opposite opinion is held
(Ruud v. Taylor (sub. nom. R. v. Taylor; ex parte Ruud) (1965) 51 W.W.R.
335 (Sask. S.C.)).
19751
PRIVATE PROSECUTIONS IN CANADA
legislation is the near certainty that the prosecutor will have to bear
his costs whether or not his case succeeds.’-” This situation is
presently under review and is the subject of a report of the National
Law Reform Comrnmission,” 4 which has recommended that costs be
awardable to and against a private prosecutor in certain cases.
III. The Role of Private Prosecutions Today
In Canada the vast bulk of prosecutions”r5 are initiated by the
police and prosecuted by a public official.:”” Is there a role for the
private prosecutor to play in the contemporary criminal justice
system? One of the basic propositions set up by the Ouimet Report”
is that discretion should be allowed in each stage of the criminal
justice process:
To implement the Committee’s proposition that the criminal law should
be enforced with a minimum of harm to the offender, discretion should
be exercised in cases involving individuals who are technically guilty of
an offence but where no useful purpose would be served by the laying of
a charge. Where a charge is laid, discretion should be exercised as to the
manner in which the law is applied.
This means… the prosecution should have the appropriate discretion to
determine whether a charge is to be laid or proceeded with, and whether
conviction on a lesser charge would satisfy the requirements of justice.1 8
This leads to two results. The first is that such discretionary power
is probably only relevant within the framework of a system of public
prosecutions.” 9 The second is that, assuming public prosecutors to
have such discretionary powers, the social justification for the
retention of private prosecutions is strengthened. It is only where
113 National Law Reform Commission, A Proposal for Costs in Criminal
Cases (Ottawa, August 1973), 18.
“i4Ibid.;
see also Bums, Research Paper, supra, f.n.105, 107-111; Judex,
Awarding Costs Against A Complainant (1970) 18 Chitty’sL. . 264.
115 Subject to any statutory consent requirement or other limitation.
116 See Grosman, The Role of the Prosecutor in Canada (1970) 18 Am.i. of
Comp.L. 498. In many cases the prosecutor is a police officer. The trend
towards centralization of prosecutions through a public prosecutor is seen
in the recent (1974) creation in British Columbia of a Provincial Crown
Counsel Office pursuant to ss3 and 4 of the Attorney-General Act, R.S.B.C.
1960, c.21.
” Report of the Canadian Committee on Corrections (Queen’s Printer,
1969).
118 Ibid., 16-17.
19 See Glanville Williams, Discretion in Prosecuting (1956) Crim.L.R. 222,
on this subject generally, and Chasse, Annotation to R. v. Ittoshat (1970) 10
C.R.N.S. 385, 392-408.
McGILL LAW JOURNAL
[Vol. 21
a public prosecutor has failed to exercise his discretion to prosecute
that a private prosecutor will feel the need to take.action personally.
What then are the reasons for retaining or removing the power to
privately prosecute? Glanville Williams is of the view that “the
power of private prosecution is undoubtedly right and necessary in
that it enables the citizen to bring even the police or government
officials before the criminal courts, where the government itself is
unwilling to make the first move”. 120 But there is a more basic
argument in favour of retaining the power of private prosecutions:
… [A] private person will normally prosecute only where his interest is
deeply affected or his emotions strongly aroused, and not always even
then. Even in early times when passions were stronger than they are now
and the desire to retaliate was not looked upon as uncivilised, it was
thought necessary to supplement the thirst for vengeance by a regular
system of presentment of crime by the tithing and grand jury.121
Dression, an American commentator who is convinced that a
system of private prosecutions is a necessary adjunct to a public
prosecutions system, considers:
A system of private prosecutions can be justified in terms of both
society’s interest in increased law enforcement and the individual’s interest
in vindication of personal grievances. Full participation by the citizen as
a private prosecutor is needed to cope with the serious threat to society
posed by the [public prosecutor’s] improper action and inaction.122
The Ouimet Report ignores the retributive element of punishment, 2 3
but the thirst for vengeance has a real, if no longer respectable,
place in our criminal justice system1 24 and is likely to remain until
the nature of man is altered. It could be dangerous for society to
ignore this elementary facet of human personality and force men
to accommodate themselves outside the law rather than within it. 125
Also, as Dression points out,12 there is a degree of privity of interest
between the harmed party and the exacting of justice; the victim
will be uniquely affected by society’s failure to prosecute. It is no
answer to say he has a civil remedy because personal injuries are
120 Glanville Williams, The Power to Prosecute (1955) Crim.L.R. 596, 599.
121 Ibid., 675.
122 Dression, Private Prosecution: A Remedy for District Attorneys’ Un-
warranted Inaction, supra, f.n.5, 227.
12 3 Supra, f.n.117, 15. It recognises deterrence, rehabilitation and control as
the only elements of punishment properly operating to protect society.
124 Holmes, The Common Law (1881), 39-42, considered vengeance a proper
objective of the criminal law, referring to Stephen for support.
125 Cohen, Moral Principles of the Criminal Law (1940) 49 Yale L.J. 987, 1010.
126 Supra, f.n.5, 228.
1975]
PRIVATE PROSECUTIONS IN CANADA
not really measurable in damages (especially when deliberately in-
flicted) and the accused will inevitably be judgment-proof. 127
The need to channel the victim’s thirst for vengeance as a
justification for the retention of a system of private prosecutions
is clearly open to a basic moral objection: vengeance is not a
proper goal for either individuals or the state. Indeed this was the
very impetus to the abortive 1854 Bill in the English House of
Commons designed to abolish private prosecutions:
The object of the present Bill is to withdraw from a sphere of private
animosity, compromise, and revenge, that which ought never to be left
to such chances and to see that justice is properly administered.128
But given the nature of man and his need to retaliate when victim-
ized, it can be argued, at least on utilitarian grounds, that it is better
for the legal system to channel and ritualize his revenge rather
than forcing him to respond at a primordial level.
These two basic arguments in support of a system of private
prosecutions generally12 9 are reinforced when the first argument is
viewed from a perspective outside the Criminal Code. In the Criminal
Code the only offence that is recognized as being peculiarly sus-
ceptible to a private prosecution is that of defamatory libel,13 which
is concerned with protection of an interest in reputation and is thus
of a personal rather than a public nature. But over the past two
decades, legislation has been enacted both by the federal and
provincial authorities in order to protect public interests in, e.g.,
consumerism and environmental quality.
This legislation -usually imposes duties, the breach of which in-
volves a criminal or quasi-criminal sanction. Yet oftentimes such
breaches fail to be prosecuted. Very often the victim is unaware
he has been victimized, and such breaches in any event are generally
regarded as less significant by busy prosecutors who have a full
calendar of “standard crimes” to cope with. Public interest groups
throughout Canada have evolved to act as informal watch-dogs
and they or their members have been involved in private prosecu-
tions under the relevant legislation. They are not acting out of a real
thirst for revenge since they, as individuals, have not been threat-
= In the same way the provision of criminal injuries compensation schemes
cannot be said to do other than imperfectly compensate the victim for his
injuries. See Bums and Ross, A Comparative Study of Victims of Crime
Indemnification in Canada (1973) 8 U.B.C. L. Rev. 105.
128J. G. Phillimore M.P., (1854) 130 Parl. Deb., 3d Series, 666.
M Namely, inaction on the part of the public prosecutor and diversion of
physical retaliation by the victim(s).
130 S.265 Cr.C.
McGILL LAW JOURNAL
[Vol. 21
ened; 131 instead they are usually acting in the public interest as they
see it.
There are numerous illustrations of this class of case, parti-
cularly in the field of environmental law. For example, in a single
issue of Canadian Environmental Law News 132 two successful private
prosecutions under the Ontario Environmental Protection Act 33 are
detailed. The first 3 4 was brought by the Sudbury Environmental
Law Association, through one of its members, against the Inter-
national Nickel Company of Canada for polluting air in breach of
smoke emission regulations under that Act. The actual prosecution
was conducted by legal counsel for the members of S.E.L.A. An
interesting feature of this case is that the private prosecution was
specifically initiated on the ground that “the Ministry of the Environ-
ment was failing to take proper legal action against industries in the
Sudbury area”.13
The other case’ 36 involved discharge of noise into the natural
environment by medium of a central air conditioning unit. The
prosecutor was a neighbour of the defendant and successfully
showed that the air conditioning unit’s noise level was in excess of
the maximum level then being considered in a draft of proposed
noise regulations. It was also successfully alleged in the information
that the unit “impaired the quality of the complainant’s home’s
natural environment for the normal summer-time use that is made
of it, that is, for peaceful outdoor relaxation, including reading,
eating, entertaining and gardening, …- ‘3’ and was thus in breach of
the Act.
Dression sees
the power to privately prosecute as a vital
form of reinforcement of criminal justice in a system that has
public prosecutors as the linch-pin of the prosecution process.’38
131 Anybody may initiate a prosecution, even though he is not the victim:
Duchesne v. Finch (1912) 23 Cox C.C. 170; Young v. Peck (1913) 77 J.P. 49.
It makes no difference if the offender has compensated the victim: Smith v.
Dear (1903) 20 Cox C.C. 458.
132 (1974) 3 Canadian Environmental Law News.
133 S.O. 1971, c.86.
134R. ex. rel. Mackinnon v. International Nickel Company of Canada Ltd.
(1974) 3 Canadian Environmental Law News 75.
135 Ibid. Shortly after this decision the Ministry brought a further successful
(1974) 3 Canadian Environmental
136 R. ex. rel. Johnston v. Lieberman (1974) 3 Canadian Environmental Law
prosecution against the same company:
Law News 75-76.
News 77; reported earlier in the same volume at 47.
137 Ibid, 47.
13s Supra, f.n.5, 225-229.
1975]
PRIVATE PROSECUTIONS IN CANADA
Whatever the theory of prosecutions in Canada, we clearly do
have an informal system of public prosecutors, 139 some of whom are
career appointees. Dression considers (in support of a system of
private prosecutions) that “vengeance is not necessarily a more cor-
rupting motive than political ambition”. 140 The same can surely be
said of personal ambition where, as in Canada, public prosecutors
are appointed rather than elected as in the United States.
The Justice Report 141 recommended the establishment of a
centralized Department of Public Prosecutions and the retention
of the capacity of the private citizen to initiate and proceed in
the criminal process, subject to a general power of the Department
of Public Prosecutions to take over the prosecution as it sees fit.
Dression refers to the English objections to a centralized system
of public prosecutions:
Those opposed to the threatened innovation [public prosecution] pointed
to the experience of other countries where, they charged, the control of
the machinery for administering criminal justice had fallen necessarily
into the hands of political parties and was being used by hordes of un-
to promote private or political ends. Private
scrupulous politicians
prosecutions were infinitely preferable..,
to an enforcement of the
criminal law which made the liberty of citizens dependent on the caprice
or venom of party managers… .142
The same general view has been expressed by a former Director
of Public Prosecutions himself who favoured the retention of the
private prosecutor:
Suggestions are made from time to time that the scope of [his] Depart-
ment might with advantage be extended, and the tendency in recent years
has been to add to the responsibilities of the Director, both in practice and
by statute… [Iln dealing with the administration of the criminal law,
proposals that tend in degree to lessen the sense of the responsibility of
the individual citizen actively to assist in the day-to-day enforcement of
the laws should be critically examined before they are accepted. Economy
and even efficiency are not necessarily adequate reasons for making
changes that may disturb the foundations upon which our system of
criminal justice has been built….
The lesson to be learned from a study of the history of the criminal law
is that we have secured and preserved our individual liberty and security
by evolving a system under which these still depend ultimately not upon
an executive, however benevolent, nor upon a judiciary, however wise,
139 Grosman, supra, f.n.116.
140 Supra, f.n.5, 229.
141 Supra, f.n.9, 681.
142 Dression, supra, f.n.5, 234 at f.n.130, quoting Howard, The Conduct of
Criminal Prosecutions in England, (unpublished), cited in Moley, Politics and
Criminal Prosecution (1929), 201.
McGILL LAW JOURNAL
[Vol. 21
but upon the active support and the final judgment of our fellow
citizens. 143
What then are the arguments against permitting private prose-
cutions and instituting a system whereby such prosecutions are
left to public officials, whether elected or appointed? Basically,
opponents are concerned
that private prosecutions may be
motivated by personal gratification, private gain or malice.144
The revenge factor plays its part here: is revenge a proper reason
for initiating a criminal prosecution? Many people would think
not. Again, the power to privately prosecute may give rise to black-
mail situations, with the potential prosecutor demanding some
advantage from the potential accused to not prosecute his case.
This can hardly be a real objection, though, as most jurisdictions
have criminal sanctions against such demands.
From an administrative viewpoint it is probably true to say
that there is maximized economy and efficiency if prosecutions
are left to public prosecutors, particularly if the administrative
machinery is centralized. This view was expressed by Lord Came-
ron in defence of the Scottish practice. He saw three desirable
results from a centralized system of public prosecutions:
(1)
the almost complete disassociation of the police from a deci-
sion to prosecute;
a measure of uniformity of practice within the jurisdiction;
and
a central control of decision as to the court in which prose-
cution is to proceed.14
(2)
(3)
Whether or not the uniformity and central control referred to
by Lord Cameron is possible within the Canadian context must be
regarded as doubtful. Only at a provincial level could the Scottish
system be emulated except in so far as federal offences other
than Criminal Code offences are concerned. To a certain extent
this type of “public prosecutor” system is utilized by the federal
government through the prosecution section of the Justice Depart-
ment. The argument in favour of a public prosecution system
based on removing the police from the prosecution function is
a strong one. But surely this end can be secured without removing
the rights of all persons other than the public investigators to
prosecute.
143 Sir Theobald Mathew, supra, f.n.17, 16.
144 Meister v. People 31 Mich. 99 (1875).
145 See s.305 Cr.C., dealing with extortion.
140 Lord Cameron, Some Aspects of Scots Criminal Practice and Procedure,
supra, f.n.9, 4.
1975]
PRIVATE PROSECUTIONS IN CANADA
The problem of the malicious private prosecution is one that
must also be considered. What protection should an accused have
against this class of case? 147 Protection should at the very least
include an adequate set of costs provisions in the Criminal Code
and appropriate provincial legislation;’ 48 however, at the present
time it cannot be said that the necessary protection does exist.
Another argument in favour of the professional public prosecutor
is that, having an independent public status and being a profes-
sional man, he is able to bring an objectivity to bear on the matter
at hand as well as the necessary expertise to understand the com-
plexity of modern society and contemporary laws.149 This is a very
strong argument so far as it bears on the removal of the investi-
gating officer from the decision to prosecute. But does the same
force apply to a private prosecutor in the real sense of the term?
The negative may be argued, particularly where the decision of
the prosecutor is not to proceed with the charge. Here we are also
concerned with the wider role of the citizen in the criminal justice
system and his need to be satisfied that his injury (real or fancied)
can be properly accommodated by it. 50
IV. Conclusions and Suggestions for Change
The basic conclusion reached in this paper is that in Canada
the private prosecutor is granted considerable power to pursue
his case, although it is very rarely exercised. A comment by Glan-
ville Williams seems equally appropriate to the Canadian context:
English lawyers rriay sometimes be heard to claim that we have no public
prosecutions; although this is little more than a form of exhibitionism, it
147 See Glanville Williams, supra, f.n.120, 678.
148 The tort remedy of malicious prosecution should not be regarded as a
complete protection since it is very difficult to succeed in such cases. On
the other hand, the tort of abuse of process has recently been resurrected
and may provide an accused with a civil remedy in certain cases: Guilford
40
Industries Ltd. v. Hankinson Management Services Ltd. et al. (1974)
D.L.R. (3d) 381 (B.C.S.C.).
149 Justice Report, supra, f.n.9, 679.
8 0 An interesting case is R. v. Commissioner of Police of the Metropolis
ex. p. Blackburn [1973] 1 Q.B. 241 (C.A.), where the appellant unsuccessfully
attempted to have mandamus issued against the respondent police com-
missioner to enforce the English pornography laws. The Court of Appeal held
that the police had a discretion in carrying out their duty with which the
courts will not interfere. The courts will intervene only where it can be
established the police are not carrying out their duty: R. v. Metropolitan
Police Commissioner ex. p. Blackburn [1968] 2 Q.B. 118. This was the same
Mr Blackburn who was then attempting to have mandamus issued against
the Commissioner to enforce the law against gaming houses.
McGILL LAW JOURNAL
[Vol. 21
is true to say that no country leaves more to the private prosecutor if
he chooses to act.151
The summary of the law in Part II of this paper reveals that, as
regards indictable offences, considerable anomalies exist depend-
ing on the mode of trial selected by the accused. Assuming that
it is considered desirable to retain the status of private prosecutor,
the anomalies could be readily remedied.
In those cases where a preliminary hearing has occurred and
the judge or magistrate decides to commit the accused for trial,
the two Criminal Code provisions that cause difficulty are s.496(1)
(speedy trial) and ss.505(1) and 507(2) (judge and jury). Section
496(1) could be altered to read:
496(1) Where an accused elects under section 464, 484 or 492 to be tried
by a judge without a jury, an indictment in Form 4 shall be preferred by
the Attorney General or his agent, or by any person who has the written
consent of the Attorney General, or by any person who has the written
consent of a judge of a court of superior criminal jurisdiction, and in
British Columbia may be preferred by the Clerk of the Peace.
A new subsection (2) would be required along the following
lines:
(2) Where [a judge or magistrate] finds that an accused should be com-
mitted for trial after preliminary hearing, a judge of a court of superior
jurisdiction shall grant on application permission in writing to the pro-
secutor to prefer an indictment in accordance with subsection (1) of this
section.
This would give a private prosecutor the right to pursue his
case in the absence of intervention by the Attorney-General. If
it were felt that the “consent of the court” provision as suggested
above would place an undue administrative burden on judges of
courts of superior criminal jurisdiction, 15 then that provision could
be replaced by the phrase “judge or magistrate of the court other
than the judge or magistrate conducting the preliminary hearing”.
However, since the suggested s.496 is drafted in mandatory terms,
there is really no point in separating the two functions and the
provision could merely read “judge or magistrate of the court”,
so that the same judge or magistrate who held the preliminary
hearing could grant written consent to the prosecutor.
11 Glanville Williams, supra, f.n.120, 596-597. In Canada there are procedural
restrictions that do not apply in England, but there is no doubt the private
prosecutor’s powers here are quite wide. Recent examples are R. v. Kennedy
[1972] 2 O.R. 754 (Ont. C.A.) and Regina ex rel McNeill v. Sanucci (1974) 28
C.R.N.S. 223 (B.C. Prov. Ct.).
152 This is suggested merely to add formality to the private prosecutor’s
application and to remove it from the court which took the preliminary
hearing.
1975]
PRIVATE PROSECUTIONS IN CANADA
The same general change could be made to s.507(2) by adding
a new subsection (3) along the following lines:
(3) Where an application to prefer an indictment has been made by the
prosecutor to a judge or magistrate of the court pursuant to subsection
(1), consent shall be granted where a preliminary hearing has been held
and there is a finding that the accused should be committed for trial.
This, too, would grant the prosecutor the right to pursue his case
in trials before a judge and jury.
Whether or not it is considered desirable to extend the private
prosecutor’s powers to appeals will depend largely on what is re-
garded as being the proper scope of his function. At the present
time, appeals from summary conviction decisions can be taken by
a private prosecutor as a result of the language of s.748 of the
Criminal Code; no such power exists in relation to indictable pro-
ceedings. Berner has suggested’ 53 that this is a reasonable com-
promise, i.e., the private prosecutor has been able to take the case
to trial; the accused is protected from being pursued further so
unwarranted harassment ceases; and the state’s interest is pro-
tected by the ability of the Attorney-General or counsel instructed
by him to appeal the acquittal or sentence.’4 If this argument is
accepted, then no modification of the existing law need be made,
except perhaps to remoye the private prosecutor’s right of appeal
in relation to summary conviction offences.
On the other hand, assuming the desirability of retaining the
right of appeal, it could be argued that this right should be rein-
forced by granting the private prosecutor full status to pursue
his case through appeal proceedings (in the absence of interven-
tion by the Attorney-General).’ 55 This right, if granted, would
probably have to be contingent on appropriate changes to the
Criminal Code concerning costs. It would be a deterrent to frivo-
lous or malicious private prosecutions if the private prosecutor
could be rendered personally responsible for the costs of the
accused in appropriate situations. 56
Section 605 could be amended to read:
(1) The Attorney General or counsel instructed by him for the purpose,
or where the Attorney General does not intervene, the informant or
prosecutor may appeal to the court of appeal …
153 Berner, supra, f.n.2, 18.
154 S.605 Cr.C.
155 The desirability of retaining the Attorney-General’s power to stay pro-
ceedings lies outside the purview of this study.
156 This is the recommendation of the National Law Reform Commission
in its Costs Proposal, supra, f.n.113, 18.
McGILL LAW JOURNAL
[Vol. 21
Section 621, dealing with appeals to the Supreme Court of Canada,
could be amended in similar fashion, extending the appeal power
to a private prosecutor in the absence of intervention by the
Attorney-General.
A second major conclusion of this paper is that a criminal
justice system that makes provision for private prosecution of
criminal and quasi-criminal offences has advantages over one that
does not. These advantages have been referred to in Part III, supra,
and do not bear repeating. 57 In any system of law, particularly
one dealing with crimes and quasi-crimes, it is of fundamental
importance to positively involve the citizen. Giving him the oppor-
tunity of presenting his case before a court, even where a public
official has declined to take up the matter, is one way of ensuring
such participation.
Of course there may be offences having subject matter that,
for other policy reasons, should not be rendered susceptible of
private prosecution. Such offences ought therefore to be so drafted
as to require a public official to pursue them or to prevent private
prosecution in the absence of specified consent.158 Certain classes
of offences, many of recent origins, are more likely to prove sus-
ceptible of private prosecution than others. Offences relating to
environmental quality and consumer protection, both at the federal
and provincial level, are those which most readily spring to mind.
In both of these areas there is widespread “civic activism”; large
groups of people are committed to the enforcement of the values
contained in this type of legislation. Yet it is this type of crime
or quasi-crime (most often the latter) that is likely to be “low-
priority” in a public prosecutor’s scale of importance.
This is not, however, to reduce the importance of achieving
access to prosecutional opportunities vis-&-vis “true” crimes. It is
merely argued that cases of private prosecutions in the latter area
will be heavily outnumbered by those in the former. Certainly such
a prosecution is not without its problems; apart from procedural
difficulties and the cost of launching a private prosecution, other
equally practical problems exist. The first is that of actually gath-
157 It is noteworthy that in France, Germany and Scotland –
all countries
pointed to as paradigms of the public prosecutorial method –
administrative
alternatives have had to be structured to cope with the situation of non-prose-
cution by the appropriate public official.
158See e.g., the Lord’s Day Act, R.S.C. 1970, c.L-13, s.16, whereby proceedings
require the consent of the Crown.
19753
PRIVATE PROSECUTIONS IN CANADA
ering evidence for presentation in court; 59 another is the possibility
of apathy or even antipathy of Crown agencies that may have
material relevant to the case.160 In such cases it is unlikely that
a private prosecutor will succeed in obtaining such material.161
Accordingly, it is likely to be only the most determined and
aggrieved of persons who will attempt to pursue the criminal law
in a private capacity. It is suggested that it is desirable that they
should be able to do so: the law should be altered to enable this
to occur where it cannot presently be done.
3-9 Laymen are unlikely to appreciate the many types of evidence necessary
for a successful prosecution.
160 Antipathy could lead to “intervention” either by a stay of proceedings,
or by the Crown taking over and continuing the prosecution.
101 See Berner, supra, f.n2, 22-26, for a full discussion of this matter.
