DATE: May 20, 2008
SUBJECT: THE EXERCISE OF DISCRETION BY CROWN PROSECUTORS WHEN DEALING WITH
PRIVATELY LAID INFORMATIONS
As a general rule, the Crown as represented by the Attorney General reviews all prosecutions of a criminal or quasi-criminal nature, except those undertaken by the Attorney General of Canada.
In the context of a private prosecution, s. 507.1 of the Criminal Code requires a justice who receives an Information laid by a private informant to refer it to a provincial court judge or a designated justice who shall consider whether to compel the appearance of the accused to answer the charge on the Information.
Subsection 507.1(3)(a) requires that the judge or designated justice may issue a summons or a warrant only if he or she has heard and considered the allegations of the informant and the evidence of witnesses.
Subsection 507.1(3)(d) provides that the judge or designated justice may issue process only if he or she “has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.”
These provisions provide a judicial screening process so that the justice system is not burdened with vexatious litigation and innocent persons are protected from the stigma of having to appear in court on such matters.
Although the Crown has an unfettered right to intervene at any stage in any private prosecution, the decision to intervene must be made on a case-by-case basis, mindful of the principles outlined in the Code of Conduct for Crown Prosecutors.
- At the process hearing, Crown prosecutors are permitted (but not required) to assist the court in it’s determination as to whether a case for issuing process is made out (i.e., whether there is a prima facie case) by cross examining the informant or the informant’s witnesses, calling witnesses, presenting any relevant evidence or making submissions.
- If process issues, a determination must be made by the Attorney General as to whether there is a reasonable likelihood of conviction and whether the prosecution is in the public interest. That is to say, the Crown prosecutor assigned to review such a case must apply the evidentiary standard and the public interest test that is applicable to all prosecutions (see the guideline The Decision to Prosecute). In conducting this review, the Crown prosecutor, where necessary, will:
- obtain copies of all relevant, available documentation;
- attempt to obtain any written statements by the complainant and the person who is the subject of the complaint;
- where a police investigation of the matter giving rise to the private prosecution has been conducted, obtain a copy of the police report; and
- attempt to obtain such other statements or information as deemed relevant to the review.
- In some cases, it may be difficult to assess whether there is sufficient evidence to justify continuing the proceedings, because no police investigation preceded the laying of charges. If so, it will in most instances be appropriate for the Crown prosecutor to intervene, request an adjournment, and ask the local policing agency investigate. It may, in some situations, be necessary to stay proceedings while the investigation is conducted. After the investigation, the assigned Crown prosecutor should assess whether to commence proceedings in accordance with the guideline The Decision to Prosecute.
- Where, in the Crown prosecutor’s opinion, the Information should not proceed it will be either stayed or withdrawn, and the informant will be notified in writing.
- If it is determined that the charge is well founded, the Crown prosecutor must then decide whether to assume conduct of the prosecution. While generally the Attorney General will assume conduct, the issue must be decided on a case-by-case basis. The following factors will help to inform this decision:
- 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 for the proper administration of justice;
- the seriousness of the offence – generally, the more serious, the more likely it is that the Attorney General should intervene;
- whether there is a reasonable basis to believe that the decision to prosecute was made for improper personal or oblique motives, or that it otherwise may constitute an abuse of the court's process such that, even if the prosecution were to proceed, it would not be appropriate to permit it to remain in the hands of a private prosecutor;
- whether, given the nature of the alleged offence or the issues to be determined at trial, it is in the interests of the proper administration of justice for the prosecution to remain in private hands.
- There may be exceptional circumstances in which the interests of justice merit allowing the matter to proceed as a private prosecution. If the reviewing Crown prosecutor recommends allowing the matter to proceed privately, the Chief Crown Prosecutor should be advised of the circumstances and, if he or she agrees with the recommendation, the approval of the Assistant Deputy Minister (Criminal Justice) must be sought and obtained before the matter may proceed privately.