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Private Prosecution - Pre-Enquete. 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:[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.
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