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Private Prosecutions

. R. v. Gong

In R. v. Gong (Ont CA, 2020) the Court of Appeal considered an appeal where a party was the target of Criminal Code investigative procedures by the Ontario Securities Commission. The case is interesting for the use of CCC investigative procedures for what is technically a private criminal prosecution:
[2] Mr. Gong is charged with four offences: fraud over $5,000; possession of property obtained by crime; laundering proceeds of crime; and uttering a forged document.

[3] In March 2018, investigators for the Ontario Securities Commission (the "OSC") obtained a production order under the provisions of the Criminal Code R.S.C. 1985, c. C-46 in relation to the appellant and several companies under his control. The production order related to the files held by Price Waterhouse Coopers ("PWC") in relation to accounting and taxation matters for the appellant and his companies. The appellant asserted claims of solicitor-client or litigation privilege over the documents covered by the production order.

[4] On consent, the documents which are the subject of the production order were sealed and filed with the court pending the determination of the privilege claims.

[5] The application judge rejected the claim of litigation privilege. She also rejected the solicitor-client privilege claim in its broadest respect. However, the application judge found that it would be necessary to review each of the documents in question to make a final determination as to the application of solicitor-client privilege. To accomplish that review, she appointed two referees whose task was to review all of the documents and separate them into various categories that she established. The application judge hoped that this process would expedite the review of the documents.
. R v McHale

In R v McHale (Ont CA, 2010) the Court of Appeal usefully sets out the procedures for the launching of a private prosecution and two appeal grounds relating to private prosecutions. In doing so the case reviews the common law and the statutory (Criminal Code) law extensively. Practically all of the case [paras 4-12,31-88] is a must-read for anyone involved with a private prosecution.

. R v Olumide

In R v Olumide (Ont CA, 2014) the Court of Appeal reiterated the criteria for setting aside a Crown stay of a private criminal prosecution:
[2] Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time. The discretion to do so is reviewable only in the event of abuse of process. There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 (CanLII) and R. v. Nixon 2011 SCC 34 (CanLII). The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.

[3] Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process. The motion judge found that there was no evidence of abuse of process. Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 1987 CanLII 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 202. There is no evidence to point to an abuse of process.
. Lochner v. Ontario (Attorney General)

In Lochner v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered an unusual appeal regarding a related series of private prosecutions below. The case is interesting for the private prosecution procedures gone through [paras 5-18].

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