Laying criminal charges a.k.a. private prosecutions

Anyone can go to a courthouse and ask a Justice of the Peace (JP) to lay criminal charges – this is also known as commencing a 'public prosecution'. Section 504 of the Criminal Code of Canada states that "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".

This means that you can allege that a named person ("the accused") has committed an indictable offence within the territorial jurisdiction of the court and the JP is required to receive the information and then refer it to a court hearing where a judge or another JP will then decide whether to issue a summons to the accused.

This process is not an easy one. You need to have detailed information about the alleged offence and be able to convince the court that you will be able to produce evidence (including the names of witnesses) if the prosecution goes ahead. You will also likely be asked to prove that you have already asked the police to investigate the incident and what the results of that investigation were. Most importantly, even if the prosecution does go forward, the Crown Attorney/prosecutor can 'intervene' in the case and either take it on or withdraw the charges.

More information:

1. http://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.asp

Generally, allegations of criminal activity are reported to the police. After the police investigate, they may lay criminal charges. However, anyone who has reasonable grounds to believe that a person has committed an offence may lay an information in writing and under oath before a Justice of the Peace.
When the information is presented to the court by a private citizen, it is then referred to either a provincial court judge or a designated justice of the peace, who holds a special hearing. The purpose of the hearing is to determine whether a summons or warrant should be issued to compel the person to attend court and answer to the charge.
This hearing, held under s. 507.1 of the Criminal Code, takes place in private, without notice to the accused person. At the hearing, the judge or justice of the peace must hear and consider all of the allegations and available evidence.
The Crown must also receive a copy of the information, get notice of the hearing, and have an opportunity to attend. The Crown may attend at the hearing without being deemed to intervene in the proceedings.
If the judge or justice of the peace decides not to issue a summons or a warrant, then the information is deemed never to have been laid.
If the judge or justice of the peace issues a summons, the person will be served with a copy of the summons, which notifies them of the charge and compels them to attend court. If the judge or justice of the peace issues a warrant, the person will be arrested and brought before a justice.
To avoid any abuse of the private prosecution process, the Criminal Code and the Crown Attorneys Act authorize Crown Counsel to supervise privately laid charges to ensure that such prosecutions are in the best interest of the administration of justice. If a summons or warrant is issued and the case involves an indictable offence, the Crown is required to take over the prosecution. So, a private citizen's right to swear an information is always subject to the Crown's right to intervene and take over the prosecution.
If the Crown intervenes, the Crown will review the matter, as it does in every other criminal case, to determine whether there is a reasonable prospect of conviction and whether a prosecution is in the public interest. If so, the Crown will proceed with the prosecution. If not, the Crown is duty-bound to withdraw the charge.

2. Ontario’s highest court recently discussed the correct procedure for private prosecutions in a case brought by anti-Native Rights ‘activist’ Gary McHale. The decision made it clear that although Crown prosecutors have the right to participate in the court hearing about whether a summons should be issued, the Crown cannot prevent from the hearing from taking place. See: http://www.canlii.org/en/on/onca/doc/2010/2010onca361/2010onca361.html

3. Detailed info on private prosecutions is available from the Toronto activist group Advocacy for Respect for Cyclists (ARC): http://respect.to/wiki/pmwiki.php?n=LegalInfo.HowToPursueAPrivateProsecu...

For more details on the criminal process, please see our Know Your Rights pamphlet on the Resources page and the information for G20 defendants posted on our front page.