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Private Prosecutions

. R. v. Glegg

In R. v. Glegg (Ont CA, 2021) the Court of Appeal considers an appeal from a Crown stay of a private prosecution. Private prosecutions are quite rare and interesting, so I harvest them when I can. This is a longish one written by Watt JA, so if you're involved with a private prosecution it's worth a review.

. P.C. v. Ontario (Attorney General)

In P.C. v. Ontario (Attorney General) (Ont CA, 2020) the Court of Appeal described the pre-enquete stage of a private prosecution, and on a Crown stay of the charges:
[27] The purpose of a pre-enquete under s. 507.1(2) of the Criminal Code is for the presiding judge or justice to determine whether a case has been made out for the issuance of process to compel the putative accused named in the information to appear or attend in answer to any of the charges contained in the information.

[28] The task of the judge or justice presiding at the pre-enquete is twofold: to determine whether:
i. the information is valid on its face; and

ii. the evidence adduced on the hearing discloses a prima facie case on the offence(s) charged.

See, R. v. Grinshpun, 2004 BCCA 579, 190 C.C.C. (3d) 483, at para. 32, leave to appeal refused, [2004] S.C.C.A No. 579; R. v. Whitmore (1989), 1989 CanLII 7229 (ON CA), 51 C.C.C. (3d) 294 (Ont. C.A.), at p. 296.
[29] To be valid on its face, a count in an information must allege an indictable offence in accordance with s. 504 of the Criminal Code. The count must also comply with s. 581, which requires, among other things, that the count contain, in substance, a statement that the accused committed an indictable offence. This statement may be in language that satisfies any of the requirements in s. 581(2).

[30] The second task of the judge or justice presiding at the pre-enquete is to determine whether the evidence adduced at the hearing discloses a prima facie case of the offence(s) alleged. To satisfy this requirement, there must be some evidence against the putative accused on each essential element of the offence(s) alleged in the information: Grinshpun, at paras. 32-33; Whitmore, at p. 296.

[31] One of the purposes underlying the pre-enquete is to ensure that spurious allegations, vexatious claims, and frivolous complaints bankrupt of evidentiary support will not result in a prosecution. To vindicate this purpose, s. 507.1(3)(a) requires the presiding judge or designated justice to consider not only the allegations of the informant, but also the evidence of witnesses: R. v. McHale, 2010 ONCA 361, 256 C.C.C. (3d) 26, at paras. 65, 74, leave to appeal refused, [2010] S.C.R. vi (note). It would seem reasonable to conclude from the obligation to hear both the allegations of the informant and the evidence of witnesses, that mere allegations are not sufficient: R. v. Vasarhelyi, 2011 ONCA 397, 272 C.C.C. (3d) 193, at paras. 39, 55, leave to appeal refused, [2011] S.C.C.A No. 470. Compare, ss. 507(1)(a)(ii) and 507.1(3)(a).

[32] The nature of the evidence that may be received at the pre-enquete is not described in s. 507.1. No principled reason exists to abandon the requirements of relevance and materiality. Nor could anyone gainsay that evidence that satisfies the rules of admissibility applicable in a criminal trial should be received. While what is received may not be coextensive with what would be relevant, material, and admissible at the trial of the offences alleged, nothing less than evidence that is relevant, material, credible, and trustworthy should be received in view of the consequences of the pre-enquete.


[52] The appellant also challenges the application judge's failure to quash the stay entered by the Crown on the charge on which the justice decided to issue process.

[53] Section 579(1) of the Criminal Code authorizes the Attorney General or counsel instructed by the Attorney General for that purpose, at any time after any proceedings have been commenced and before judgment, to direct entry of a stay of proceedings. The stay entered in this case after the pre-enquete justice had decided to issue process on one count was timely: McHale, at paras. 85-86.

[54] Entry of a stay of proceedings under s. 579(1) of the Criminal Code is a core element of prosecutorial discretion. Exercise of that discretionary authority is reviewable only in cases of “flagrant impropriety": Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] S.C.R. at paras. 46, 49.


[56] The appellant’s final allegation of error arises out of a comment the application judge made during the hearing and repeated in the final paragraph of her written reasons. In essence, she questioned whether the grievance of the appellant's partner which formed the basis of the offences alleged was not more properly addressed in the labour relations and civil context than by the institution of criminal proceedings.

[57] In our view, this observation on the part of the application judge was well warranted in the circumstances. After all, what set this entire train of events in motion was an unfavourable performance review. There followed a rapid escalation from these job performance beginnings to invocation of the blunt instrument of the criminal law.

[58] The observation of the application judge is also consistent with the purposes of the pre-enquete. Among those purposes are to ensure that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support do not carry forward into a prosecution and to guard against the initiation of criminal proceedings to further claims that belong in another forum: McHale, at paras. 65, 74.
. 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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