Private Prosecutions In The Public Interest?: Process, Possibilities, And Problems

Section 504 of the Criminal Code, R.S.C., 1985, c. C-46. Chances are you've never heard of it. The section is rarely invoked; a number of obstacles stand in the way of its successful application. But it might just become an important provision for any public interest group, civil litigator, or corporate counsel to be aware.

Section 504 allows any person to initiate a private prosecution if he or she believes, on reasonable grounds, that a person has committed an indictable offence.1 The definition of prosecutor in ss. 2 and 785 of the Criminal Code makes it clear that someone other than the Attorney General may institute proceedings to which the Criminal Code applies. In 2002, s. 507.1 was added to the Criminal Code, setting out the procedure for referral of an information laid in a private prosecution - making it abundantly clear persons not involved in law enforcement may commence criminal proceedings.

Again, it is important to emphasize how rarely this procedure for laying a private information is used. Normally, of course, when it comes to criminal charges, private individuals will go to the police or other law enforcement officers with their complaints, and the investigating authorities will provide a vetting process to determine whether an information will be laid. Sometimes a complainant will take matters into their own hands - in a neighbours' dispute over property or some perceived threat, for example - and initiate criminal proceedings on their own, looking for a peace bond or other resolution of their dispute. These minor, private skirmishes often fizzle out without much success or public notice.

It appears, however, there may be an increasing trend in the use of private prosecutions in the public interest. Rather than seeking to settle a private grudge in criminal court, public interest organizations or individuals might seek to draw attention to some alleged criminal conduct and endeavor to hold the accused accountable for those alleged crimes by way of a private information.

This is exactly what MiningWatch Canada did against the Mount Polley Mining Corporation (MPMC), owned by Imperial Metals, and the Province of British Columbia on October 18, 2016. In a press release, MiningWatch Canada claims the negligence of MPMC and B.C. caused "the largest mine waste disaster in Canadian history." MiningWatch Canada's private information is charging MPMC and B.C. with violating ss. 35(1) and 36(3) of the Fisheries Act, R.S.C. 1985, c. F-14, which prohibit all persons from any "work, undertaking, or activity that results in serious harm to fish" that sustain commercial, recreational, or aboriginal fisheries and the deposit of "deleterious substances of any type" into fish bearing waters.

Details of the factual background underlying the private prosecution and the legal position taken by MiningWatch Canada are available in a summary of the prosecution published by MiningWatch Canada.

This post is not intended to comment on the charges against MPMC and B.C., other than to observe the outcome of this proceeding might put another arrow in the quiver of public interest litigants and another risk for corporations and defence counsel to consider and mitigate.

The remainder of this post is a primer on the process, possibilities, and problems of private prosecutions in the public interest.

Process

So how does a private prosecution work? This section describes in broad terms the process that applies generally to private prosecutions. For greater detail, see the detailed judgment of Watt J.A. in R. v. McHale, 2010 ONCA 361.

The subsequent sections comment on some possibilities and problems associated with private prosecutions in the public interest - such as the MiningWatch Canada prosecution initiated against MPMC and B.C.

A private prosecution begins with the swearing of an "information". The person swearing the information (the "informant") must set out the following for each offence charged:

the identity of the accused; the particulars of the offence(s) alleged; the sections and legislation under which the charge(s) is being laid. The information must be made in writing under oath and laid before a Justice of the...