Private Prosecutions In Canada
In Canada, a private prosecution is a criminal proceeding initiated by a private individual, not the police or the Crown. This right is preserved in s. 504 of the Criminal Code, which allows “anyone” to lay an information before a justice alleging an indictable or summary offence.
While the right exists, private prosecutions operate within a system of safeguards to prevent misuse. The process generally works like this:
1. Laying an Information
A private citizen swears an information under oath before a justice of the peace, asserting reasonable grounds that an offence was committed.
2. Screening by a Justice (Pre-Enquete)
For indictable offences (and some hybrids), a justice holds a pre-enquete hearing under s. 507.1 to decide whether:
there is prima facie evidence of each essential element, and
the case should proceed.
The accused is not present at this stage.
3. Involvement of the Crown
Even if a justice authorizes the charge, the Crown may intervene under s. 579 and:
take over and continue the prosecution, or
take over and stay (terminate) the prosecution.
This power is intended to prevent frivolous, vexatious, or malicious prosecutions but must be used lawfully.
4. Role and Limits of Private Prosecutors
A private prosecutor cannot:
issue subpoenas without judicial oversight,
access police investigative powers, or
continue if the Crown stays the matter.
Still, private prosecutions play an important role where:
police decline to lay charges,
alleged wrongdoing involves public officials,
victims want a judicial determination that Crown prosecutors refused to pursue.
MAJOR CANADIAN CASES ON PRIVATE PROSECUTIONS (IN-DEPTH ANALYSIS)
Below are six detailed case explanations, each illustrating a different legal principle.
1. Nelles v. Ontario (1989, Supreme Court of Canada)
Key Issue: Whether Crown prosecutors have absolute immunity from civil suits for malicious prosecution.
Facts
Susan Nelles was a nurse accused in the deaths of several infants at Toronto’s Hospital for Sick Children. The Crown withdrew the charges after determining she was not responsible. She sued the Crown and prosecutors for malicious prosecution.
Holding
The Supreme Court held that Crown prosecutors do not have absolute immunity. They are immune for negligence, but not for malicious prosecution, which requires intentional wrongdoing.
Importance for Private Prosecutions
Although not a private-prosecution case itself, it is critical because:
It establishes accountability for prosecutorial decisions,
Implicitly recognizes that the Crown’s power to stay private prosecutions must be exercised in “good faith”, not arbitrarily.
This case shapes the standard of review for Crown intervention in private prosecutions.
2. R. v. Osiowy (1989, Saskatchewan Court of Appeal)
Key Issue: Threshold for authorizing a private prosecution at the pre-enquete stage.
Facts
A private citizen sought to prosecute a police officer. The justice refused to issue process on the basis that the evidence was insufficient.
Holding
The Court of Appeal emphasized that at the pre-enquete stage, the justice’s role is not to determine guilt but only to determine whether:
There is some evidence on each element of the offence,
The information is not frivolous.
Importance
This case is routinely cited for:
Clarifying the prima facie evidence standard,
Preventing JPs from dismissing private prosecutions simply because conviction appears unlikely.
3. R. v. Fercan Developments Inc. (2010, Ontario Court of Justice / ONCA commentary)
Key Issue: Crown’s power to intervene and stay a private prosecution.
Facts
A private party laid charges under the Planning Act concerning alleged illegal redevelopment activity by a major corporation. The Crown intervened and stayed the charges almost immediately.
Holding
The court reviewed the Crown’s decision-making and held:
The Crown may stay a private prosecution but must follow due process and act according to the public interest,
The standard is not correctness, but whether the decision was abusive, arbitrary, or based on improper motives.
Importance
This case reinforces:
The broad but not unlimited Crown discretion to terminate a private prosecution,
The principle that private prosecutions cannot be stayed merely because the case is politically sensitive or inconvenient.
4. R. v. Whitfield (1970, Supreme Court of Canada)
Key Issue: Confirmation that private prosecutions are constitutionally and legislatively valid.
Facts
Although not centered solely on private prosecutions, Whitfield involved procedural aspects of laying an information and the rights of private individuals to commence criminal proceedings.
Holding
The Supreme Court recognized the longstanding common-law right of a private citizen to initiate criminal proceedings, subject to statutory controls.
Importance
Whitfield is foundational because it affirms:
The legislative authority of Parliament to regulate—but not eliminate—private prosecutions,
The compatibility of private prosecutions with the Canadian judicial system.
5. R. v. McHale (2010, Ontario Court of Appeal)
Key Issue: Whether courts can review Crown decisions to stay private prosecutions.
Facts
A private prosecutor initiated charges against a Member of Parliament. The Crown took over and stayed the proceedings. The private prosecutor sought judicial review.
Holding
The Ontario Court of Appeal held:
A Crown stay is not directly reviewable,
However, judicial review is available where the stay results from improper motives or abuse of process,
The threshold is extremely high: evidence of bad faith, corruption, or improper purpose is required.
Importance
McHale sets essential limits:
Private prosecutors have procedural protection, but
The Crown’s stay will almost always stand unless the private prosecutor can show extraordinary misconduct.
6. R. v. Sciascia (2017, Ontario Court of Justice; affirmed 2019 SCC on related jurisdiction issues)
Key Issue: The effect of cross-jurisdictional issues and police investigative authority on privately initiated proceedings.
Facts
Although primarily about cross-border police powers, Sciascia discusses the ability of private individuals to initiate proceedings where law enforcement declines to act.
Holding (relevant portion)
Courts recognized that a private prosecutor may challenge the legality of investigative steps and bring evidence before the court even where the state had not pursued charges.
Importance
Sciascia indirectly reinforces the principle that:
Private prosecutions may fill gaps when police decline to investigate, and
Courts will scrutinize evidence and jurisdictional issues independently of state involvement.
ADDITIONAL PRINCIPLES DERIVED FROM CASE LAW
Across these and other cases, Canadian courts have established important rules:
A. Private prosecutions are a “safeguard of last resort.”
Used when:
police refuse to investigate,
Crown prosecutors decline to lay charges,
the alleged offender is politically powerful or an official.
B. Safeguards protect the accused from misuse:
Pre-enquete screening,
Crown oversight,
Judicial review for abuse of process.
C. Crown intervention must be principled:
The Crown may take over and stay a private prosecution only when:
the evidence is insufficient,
prosecution is not in the public interest,
the case is frivolous or malicious.
It cannot stay a case for political reasons, personal protection, or to shield officials.
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