In Canada, a private citizen can attempt to start a criminal case by ‘laying an information’ before a Justice of the Peace under Section 504 of the Criminal Code. However, the Crown prosecutor always reviews these cases and has the ultimate power to take over the prosecution or shut it down entirely.
When you are the victim of a crime, the usual process is to call the local police. But what happens if the police in Toronto, Vancouver, or Halifax investigate and decide there is not enough evidence to lay charges? For many Canadians, this feels like a denial of justice. Fortunately, federal criminal law provides a rare but legal backdoor: the private prosecution.
Launching a private criminal prosecution is an incredibly complex and uphill battle. You are essentially stepping into the shoes of the police and the Crown, bearing the burden of proving an offence beyond a reasonable doubt. Because the legal procedures are so strict, it is highly recommended to hire an experienced criminal lawyer from our directory to help you gather evidence and navigate the courthouse correctly. 💼
Step-by-Step Process for a Private Prosecution in Canada
Whether you are dealing with a summary conviction offence or a more serious indictable offence, the procedure to launch a private prosecution is governed by the federal Criminal Code. Here is the standard path you must follow at your local provincial courthouse.
Step 1: Gathering Evidence and Drafting the Information
You cannot simply tell a judge someone committed a crime; you must have concrete proof. Before going to court, you or your lawyer must draft a formal legal document called an ‘Information’. This document details the specific section of the Criminal Code that was violated, the date, the location, and the identity of the accused person. 📋
Step 2: The Pre-Enquête Hearing
Once the Information is drafted, you must take it to a Justice of the Peace (JP) at the local courthouse. You will swear an oath that the allegations are true to the best of your knowledge. The JP will then hold a special hearing called a ‘pre-enquête’. This hearing is held in private (in camera). You must present your evidence to convince the JP that there are reasonable grounds to believe the offence occurred.
Step 3: Issuing a Summons or Warrant
If the Justice of the Peace agrees that your evidence meets the legal threshold, they will officially ‘issue process’. This means they will sign a summons ordering the accused person to attend court on a specific date to face the charges. In very rare, serious cases, they might even issue an arrest warrant. 📞
Step 4: Crown Review and Intervention
This is the most critical step. Once process is issued, the provincial or federal Crown Counsel is legally notified. Under Canadian law, the Crown has the right to intervene in any private prosecution. They will review your evidence. If they believe there is a reasonable prospect of conviction and it is in the public interest, they will take over the case. If they think the case is weak or frivolous, they will intervene and legally withdraw (drop) the charges.
How Much Does a Private Prosecution Cost in Canada?
While the court system itself does not charge you to report a crime, preparing a case that will actually survive a Crown review requires a significant financial investment in legal help.
- Court Filing Fees: $0 CAD. There is no fee to lay an Information before a Justice of the Peace.
- Private Investigator Fees: $1,000 to $5,000 CAD. Because you do not have the police to gather evidence for you, you may need to hire professionals to find witnesses or documents.
- Criminal Lawyer Fees: $5,000 to $20,000+ CAD. Drafting the Information, preparing the legal arguments for the pre-enquête, and advocating during the Crown review requires senior legal expertise.
| Expense Type | Estimated Cost (CAD) | Notes |
|---|---|---|
| Court Fees | $0 | Free access to the Justice of Peace |
| Evidence Gathering | $1,000 – $5,000 | Private investigators or experts |
| Legal Representation | $5,000 – $20,000+ | Crucial for surviving Crown review |
How Long Does the Process Take?
The timeline for a private prosecution depends heavily on the availability of a Justice of the Peace at your local courthouse. Securing a date for a pre-enquête hearing can take anywhere from a few weeks to several months.
Once the hearing takes place and a summons is issued, the Crown will usually take 30 to 90 days to review the file before deciding whether to take it over or shut it down. If the Crown decides to prosecute the case, it will enter the regular criminal justice stream, which can take an additional 12 to 18 months to reach a trial. 📅
Frequently Asked Questions (FAQ)
Can I bypass the police entirely and just do a private prosecution?
Technically yes, but practically no. The Crown prosecutor will almost always demand to know why you did not go to the police first. If the police have not investigated, the Crown is highly likely to pause or drop your case and refer the matter back to local law enforcement.
Can the Crown drop the charges even if the Judge agrees with me?
Yes. The Justice of the Peace only decides if there is a basic legal foundation for the charge. The Crown represents the state and has the ultimate constitutional authority to stay (pause) or withdraw the charges if they feel a conviction is unlikely.
Can I be sued if my private prosecution fails?
Yes. If you launch a private prosecution maliciously, without reasonable grounds, simply to harass someone, the accused person could later sue you in civil court for ‘malicious prosecution’.
Do I need a lawyer to lay an Information?
While you are legally allowed to represent yourself, the rules of evidence are incredibly strict. Finding a lawyer in our directory gives you the best possible chance of convincing both the Justice of the Peace and the Crown that your case is legitimate.
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