Type of document: Prosecution Directive
Effective date: November 14, 2017

A person has the right to have criminal process issued from a Justice of the Peace by swearing an Information alleging reasonable and probable grounds that another person committed a criminal act.

The Crown Attorney’s Act directs that the Crown watch over private criminal prosecutions and where necessary, assume the conduct of the proceedings, to ensure that they are pursued in the interests of the administration of justice. The statutory right of a person to lay an Information and the right and duty of the Attorney General to supervise a criminal prosecution and to intervene and take over a private prosecution are fundamental parts of the criminal justice system.

Process for private information

Step 1: receipt of the Information

A person who has reasonable grounds to believe that another person has committed a criminal offence may provide that information to a Justice of the Peace in order to have the person brought to court. A standard form is available for anyone to fill out and submit to the Justice of the Peace.

The person who completes the form should provide details of the alleged offence and the names, addresses, and telephone numbers of any witnesses whose evidence will be relied upon.

It is important that the person indicate if the police have been involved and if there were prior attempts made to commence related criminal proceedings.

The Justice of the Peace will review the completed form and determine whether it satisfies the statutory requirements. Where the Justice of the Peace is satisfied that these requirements have been met, they shall direct the preparation of the Information. The “Information” is a document that sets out the allegations of criminal conduct. The person laying the information will be asked to swear an oath or affirm the truth of the contents of the Information. Where the allegations of the person do not meet these requirements, an Information will not be prepared.

If an Information is prepared and sworn or affirmed, a Justice of the Peace will select a date for an ex-parte hearing, known as a pre-enquete. At the pre-enquete, the Justice of the Peace or a Judge of the Ontario Court of Justice will determine whether a summons or a warrant will issue to compel the appearance of the persons named in the information to answer the charge.

Step 2: notice of Pre-enquete Hearing

The Criminal Code provides that in order for process to issue, or criminal proceedings to commence, the Crown Attorney’s Office must receive a copy of the private Information and reasonable notice of the pre-enquete hearing. Further, a Prosecutor shall have an opportunity to attend the hearing. The Prosecutor does not have jurisdiction to withdraw an Information before the pre-enquete hearing.

Step 3: The pre-enquete Hearing

At the pre-enquete, the presiding Justice of the Peace or Judge of the Ontario Court of Justice shall hear and consider the allegations of the person, as well as the evidence of any witnesses. The court shall give the Prosecutor an opportunity to cross-examine the person’s witnesses, to call witnesses and to present any relevant evidence at the hearing. The Prosecutor’s appearance at the hearing does not mean that the Attorney General has intervened in the proceeding.

At the end of the pre-enquete hearing, the presiding justice will determine whether there was sufficient evidence for the case to proceed. If there is sufficient evidence for the case to proceed, the justice will issue a summons or warrant to compel the appearance of the accused to answer to the charge. If there is insufficient evidence for the case to proceed, the proceedings will be concluded.

Role of the Prosecutor at the pre-enquete hearing

Absent exceptional circumstances, the Prosecutor must attend the pre-enquete hearing. The Prosecutor’s attendance is required for several reasons, including the following:

  • preventing proceedings that are not in the interest of the administration of justice
  • preventing the use of criminal proceedings for malicious or unfair purposes
  • preventing potential abuses of the court system
  • ensuring the efficient allocation of court resources
  • to identify countercharge situations, where the police in a separate proceeding have criminally charged an individual and now that same person wishes to bring privately laid charges against the victim from the initial case
  • to become aware of justice prosecutions, where the allegations are against a police officer, a Crown, or other justice official or public figure
  • to identify intimate partner violence cases, whether as a new charge or as a charge related to an existing police laid charge
  • to ensure that in cases where disclosure of the privately alleged information could cause irreparable harm to a person’s reputation or livelihood, an appropriate publication ban is sought
  • to identify cases that raise significant legal or policy issues
  • to prevent cases proceeding where the law requires the Attorney General’s consent to the laying of an Information, such as the laying of charges against a young person. A list of those offences may be found in the Attorney General Consent and Delegation Directive.

Carriage of the prosecution

If the justice issues Process, the Prosecutor must screen the charge according to the Charge Screening Directive. The Prosecutor should contact the police prior to screening the charge to determine if there was a police investigation and if so whether the Prosecutor has all the material in the police’s possession. The Prosecutor should determine whether further investigation is required. Once any further investigation has been completed, if the Prosecutor is of the view that there is no reasonable prospect of conviction, or that the prosecution is not in the public interest, the Prosecutor must withdraw the charge.

If the Prosecutor is of the view that the prosecution should continue, a decision should be made as to whether the prosecution should be conducted by the person who brought forward the proceeding or the Prosecutor. The Prosecutor must intervene if the prosecution involves allegations of intimate partner violence, allegations against a young person and indictable offences.

In all other cases, the Prosecutor may exercise discretion to take over the prosecution, having regard to the following factors:

  • public interest
  • interests of individual victims, witnesses and accused parties
  • the need to make the best use of the valuable time and resources of all parties involved and courts
  • the need for timely and ongoing disclosure to the accused person.

If the Prosecutor intervenes, the Prosecutor should follow the obligations set out in the Disclosure Directive. The Prosecutor should remind the private prosecutor that the accused is entitled to disclosure of the evidence to be used against them including the evidence outlined during the pre-enquete hearing.

Charges laid against Crown agencies

Any allegations by private citizens of misconduct against Crown Ministries, agencies and their employees for violations of occupational health and safety, environmental protection and similar legislation must be referred to the Director who must advise the Assistant Deputy Attorney General – Criminal Law Division.