Laying a private information

Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123 :

[19]        There are two stages to commencing a prosecution under the Criminal Code.  The first is laying an information and the second is issuing process.  Section 504 of the Code establishes the parameters for laying an information:

504.  Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

[20]        The justice must receive the information if the alleged offence is known to law and facially complies with the requirements of this section: R. v. McHale,2010 ONCA 361 (CanLII), 2010 ONCA 361 at para. 43, leave to appeal ref'd [2010] S.C.C.A. No. 290.  This commences "criminal proceedings" and the person is "charged with an offence" for the purpose of s. 11(b) of the Charter of Rights and Freedoms [Charter] (the right to be tried within a reasonable time): see R. v. McHaleat para. 44 and R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594 at 1607.  There is another step, however, before a "criminal prosecution" commences, and that is the pre-inquiry held by a judge to decide whether to issue process in the form of either a summons or a warrant.

[21]        Since 2002, the Code sets out two different procedures for issuing process.  The first, s. 507, applies to informations laid by police officers, public officers, the Attorney General or the Attorney General's agent.  The second is s. 507.1, which applies to private prosecutions such as the one brought by Mr. Ambrosi.  Before the 2002 amendment, both public and private informants were governed by s. 507.  The relevant part of the current version ofs. 507 (public prosecutions) reads as follows:

507. (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General's agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider,ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

[22]        In this case we are concerned withs. 507.1 (private prosecutions):

507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

[23]        Section 507.1 requires that the referral be heard by a judge or a designated justice; that the informant lead evidence of his or her allegations on each essential element of the offence (see also, McHale at para. 74); and that notice be given to the Attorney General, and that the Attorney General be permitted to participate, cross-examine and call witnesses, and present evidence.

[24]        These additional safeguards ensure that "spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution" (McHale at para. 74).

[25]        Once process is issued, the Attorney General has the right to step in and take over the prosecution and either stay the proceedings or continue with the prosecution: s. 579(1) of the Code.