Private Prosecution

General

In Ontario, the process of Private Prosecution is a process by which any person residing in Ontario can submit an application for the laying of charges against the perpetrator of a crime with the Ontario Court of Justice. To do so, one needs to fill out an application for private prosecution, the person filing out the form is called the "informant" because they are not necessarily the victim or even a witness. They just happen to have evidence that a crime was committed.

Application

In the application for private prosecution, the informant details the crime they are reporting was committed, the date, time, location of the alleged crime, and the name(s) of the alleged perpetrator(s) of the crime (along with their phone number and/or address for identification purposes). The informant must also explain what evidence makes them believe the crime was committed. 

Submitting the Application

To submit the application for private prosecution, the informant must submit it to a Justice of the Peace (JP) through what is sometimes called "intake court", at the local courthouse of the jurisdiction where the crime occurred. In the experiences we've learned of so far, this was done by appearing at the courthouse, waiting for the "intake court" to open around 9am on certain workdays, submitting the application to the clerk, and waiting for the JP to look over the application and then interview the informant about the application. The goal of the interview is simply to determine if the application seems legitimate on the surface, they are making sure the informant is not submitting the complaint for frivolous or vengeful reasons. 

Once the JP is satisfied with the interview of the informant, they will sign "the information" along with the informant, which is called "swearing to an information". That 'information' states the reporting of the crime and, as far as we know, does go into the "CPIC" police system as having been reported. The information holds only the bare minimum of information about the alleged crime: date, time, location, alleged crime, name(s) of alleged perpetrator(s). At the end of the signing/swearing of the information, the JP will confirm the date of the next step (the Pre-Enquête Hearing) before the informant leaves.

The submission of the application in this way can take a whole half day, sometimes more, due to the time the JP needs to review the application, review applicable law, and then conduct the interview and write up the information to be sworn.

Pre-Enquête Hearing

The next step in the private prosecution process is called a "Pre-Enquête" Hearing. This is a hearing held by a JP (not necessarily the same JP) where the Crown Attorney's Office is also present. This is where the informant must present the evidence they claim to have as part of their application for private prosecution. The evidence could include physical evidence, witness testimony, or even digital files; it could be anything. In the cases we follow here, the applications are based on Sexual Assault reports, so the evidence presented at this hearing is usually simply the victim's testimony and rarely includes physical evidence, but sometimes does. In these cases, the informant is also the victim, who is also the only witness.

At the pre-enquête hearing, the presiding JP will ask questions to the informant about the application which they hold in their hand, to determine if the elements of the crime alleged are present; this is also called a "prima fascia" assessment. They will then usually use those answers to determine if they believe charges should be laid. That is also referred to as "issuing process" and is executed by either issuing an arrest warrant, or a summons for appearance in court, for the perpetrator(s) named in the application. If the JP does not issue either a summons or an arrest warrant, the decision is inevitably that the application is denied and the process is over. There would then be no record of any charges or accusations against the alleged perpetrator(s).

Once that is decided, if process is indeed issued, the Crown Attorneys present then have the opportunity to ask questions as well. The key here, is that the Crown Attorneys are looking to determine if they want to "intervene", or "take over" the prosecution - because if they do not, then the informant is on their own to find and hire a lawyer to prosecute the case privately (not using Crown / provincial resources)... or so we are lead to believe. However, in most cases, if process is issued, the Crown Attorney's office usually intervenes and takes over the case when the crimes alleged are as serious as these (sexual assaults).

The way Crown Attorneys determine if they want to intervene, or take over a case, is by determining if there is a "reasonable prospect of conviction" through a process called "charge screening". This term does not mean that the informant/victim/witness has to prove "beyond a reasonable doubt" that the crime occurred, it does not even mean that the Crown is searching for a "probability" of conviction, but simply a reasonable prospect of conviction. According to the Crown Prosecution Manual's chapter on charge screening: 

     "In considering the case, the prosecutors should consider the following factors:

• the availability of evidence
• the admissibility of evidence implicating the accused
• an assessment of the credibility and competence of witnesses
• the availability of any evidence supporting any defenses that should be known or that have come to the attention of the Prosecutor. "

Next Steps

In the event that the Crown Attorneys decide not to intervene, we suspect, from the literature we've reviewed, that the informant would then be left with having the find and hire a lawyer to prosecute the case, but that's not guaranteed as there is conflicting research on the topic as it relates to indictable offences. If, however, the Crown Attorneys do decide to intervene and take over the case, the informant's work is now over. The case, and all the evidence, is handed over to the Crown Attorneys and the informant must stop intervening in the process. 

When the informant is also the victim

In the Silin case that we've been following, the informant was the victim of the sexual assault she reported. The evidence presented included some physical evidence (clothes worn during the alleged incident), and her own testimony as the victim of the crime. She was therefore required as a witness for the Crown during the trial. 

It is **VERY** important to realize that the Crown Attorneys do NOT represent the victim in a criminal case. Crown Attorneys represent the people of Canada, or in other words, the elected government, and by that: the Head of State, the Crown. Because the Crown Attorneys do not represent the victim, there is NO SOLICITOR-CLIENT PRIVILEDGE, which means that anything a victim says to a Crown Attorney can be used as evidence in the case and must be shared with the defense. This is why Crown Attorneys tend not to meet with the victim at all, or very little. Every case is different, but a victim should usually expect to have very little contact with Crown Attorneys / prosecutors after they've intervened and taken over the case. 

This means that the victim has no right to an opinion on the strategy that the prosecutors decide to use, nor what evidence they decide to present and what evidence they decide not to. Though they will try to prepare the victim for testimony if needed, they will spend very little time with the victim. All of this, however, does not mean that the victim has no rights. They have Victim Rights and they can find & hire lawyers to represent them during the criminal process; these are called Lawyers for Victims of Crime. It is not easy to find lawyer who provides this service, but there are some out there. We recommend that any victims looking to hire a lawyer for themself as a victim of crime during a criminal process should contact their local Sexual Assault Support Centre and ask for recommendations. 

It is also *VERY* important for military victims to know that the Sexual Misconduct Support and Resources Centre (SMSRC) has a program that helps cover the cost of such lawyers; it is called the ILA Program (Independent Legal Advice Program).