Private Prosecutions: Laying an Information
Who Can Lay an Information?
As set out in section 504
of the Criminal Code, “any one” who
on reasonable grounds, believes that a person has committed an indictable
offence within the territorial jurisdiction of the justice, etc. may lay an information in writing
and under oath before a justice, and the justice shall receive the information.
Section
504, Criminal Code.
By use of the expansive
term “any one”, section 504 permits a
criminal proceeding to be initiated by a private citizen, among others, by
laying an information.
“Territorial
Jurisdiction”
Justices of the
peace have jurisdiction throughout Ontario.
Section 17(1) of the Justices of the
Peace Act.
Section 504 of the Criminal Code makes it
mandatory for a justice of the peace to receive an information, provided there
is a connection between the person who is alleged to have committed an
indictable offence and the "territorial jurisdiction" of the justice.
In Ontario, the term “territorial jurisdiction" in section 504
refers to the province of Ontario.
R. v. Ellis, 2009 ONCA 483 (CanLII), at para. 39;
see section 17(1) of the Justices of
the Peace Act.
In other parts of
Canada, where legislative schemes governing the systems of court may be
different, "territorial jurisdiction" may have a different meaning.
The Process of Laying an Information
The process for
laying an information was clearly set out by the Court of Appeal for Ontario in
R. v. McHale:
A private informant who wants to lay an information
before a justice of the peace must complete a standard form for submission to
the justice. The private informant must provide sufficient details of the
alleged offence to permit an information to be drafted, and list the names,
addresses and telephone numbers of the witnesses whose evidence will be relied
upon to establish the truth of the informant’s allegations. The private
informant must also indicate whether the police have investigated the offence
alleged and describe any prior attempts the informant has made to lay an
information or have process issued as a result.
The justice reviews the portion of the form that the
private informant has completed to determine whether the allegations made
satisfy the Criminal Code requirements and oblige the justice to receive
the information. Where the justice is satisfied that the Criminal Code
requirements have been met, she or he will direct the preparation of an
information and have the private informant swear an oath or affirm the truth of
its contents. Where the allegations of the private informant do not meet the
demands of s. 504, the justice is not entitled to receive the information.
A justice who receives an information laid by a private
informant, and determines its compliance with s. 504, selects a date upon which
a hearing will be conducted to determine whether the process of the court, either
a summons or a warrant, will issue to compel the appearance of the persons
named in the information to answer to the charge [known as a pre-enquette
hearing].
Criminal Code.
In what cases justice may receive 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.
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca
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