9.0 STEPS TO A PRIVATE PROSECUTION
After you have completed your investigation and made a formal complaint to the appropriate regulatory body, you may find it necessary to start legal proceedings. This section provides you with a brief overview of a private prosecution. See the bibliography for books that address this subject in more detail, such as Enforcing Environmental Law: A Guide to Private Prosecution, Second Edition, by James S. Mallet. (To purchase a copy, contact the Environmental Law Centre at 1-800-661-4238.) You will need the help of a lawyer to understand many of the terms in this section and to guide you through the steps.
Step 1: Preparation of the brief
Once your investigation is complete and you, your group, and your lawyer feel you have grounds for a charge, compile the information you have gathered into a brief.
The brief should contain:
• A copy of the information, (a written statement of an alleged offence sworn before a Provincial Court Judge or a Justice of the Peace). This is a standard court document (obtainable from any court, or you can prepare your own template) that outlines the charges you are laying. The document template must be in both English and French. However, the charges specified in the document need only be in the one language the accused is familiar with. It is important that you understand the legislation that you are laying the charges under since the information must follow the legislation. See Appendix G for details on writing an information.
• A list of the accused.
• A synopsis (or summary) of the circumstances leading up to the charges. The synopsis should refer to any and all supporting documents, including maps, photographs, letters, and permits.
• A list of exhibits: the documents, photographs, videotapes, and so on that you will rely on. You should append these in the order they are referred to in the synopsis.
• A list of the potential witnesses.
• Witness statements or “will says,” which are summaries of what the witnesses are expected to testify to based on their expertise and knowledge of the events.
The brief should be appropriately tabbed, indexed, and bound in a three-ring binder. You should also make copies for the Crown (if it chooses to intervene) and the accused’s lawyer(s).
Step 2: Laying of the information
Justices of the Peace (JPs) usually have their offices at a local court house. Prior to appearing before a JP, call ahead with notification that you wish to initiate a private prosecution and arrange a time for you to present your facts. Bring the information and your evidence with you. Be sure of all your facts because you will need to summarize your case for the JP, who will then have you swear that the information you have presented is true.
Once you have sworn an information in a private prosecution, the provincial attorney general (AG) or the federal Department of Justice (DoJ) may intervene in your case. The AG or DoJ can do two things at this point: assume conduct of the case or review the case and turn it back to the informant (the person who laid the charges) for further proceedings. If the AG or DoJ turns the case back to you or does not intervene, you may proceed. Ally yourself with a good public interest lawyer whom you trust (if you have not done so already) and move forward with your case.
If the AG or DoJ assumes conduct of the case, they have two options: either proceed and take the matter to trial or enter a stay of proceedings. Although the informant can revive a case that results in a “stay” up to one year later, if the AG or DoJ enters a stay of proceedings in a matter, you can be almost assured that the case is dead.
If it looks like a stay in your case is imminent, do not despair! Use the media to try to gain the upper hand and force the government to act. Bring your case to the court of public opinion. If your case is stayed and you feel it is a strong case with a good chance of winning, you can seek a judicial review of the AG’s or DoJ’s decision.
InBritish ColumbiaandAlberta, the prevailing course of action is for the AG to intervene in the matter and stay the proceedings, usually after several court appearances and much delay. But inOntario, private prosecutions have been allowed to proceed.
If you are allowed to proceed, the JP will sign a summons, an order issued in the Crown’s name to the accused to appear at a particular court at a specified date and time to set a date for the preliminary inquiry or trial, depending on the type of offence. Once the JP fills in the summons and signs it, the summons is issued.
Although a JP must receive an information and sign it after you have sworn its contents to be true, the JP can refuse to issue a summons. A decision not to issue a summons cannot be reviewed by the courts. However, should a JP refuse to issue a summons, don’t give up! There is nothing to prevent you from going to another JP, though you may have to swear another information.
In Ontario, the Provincial Offences Act (R.S.O. 1990, c. P.33, section 26) sets out the requirements that must be met to adequately serve a summons on the accused. To serve a summons on an individual, a provincial offences officer hands it to the accused personally or leaves it at their last known address with a person who appears to be at least sixteen years old.10 If the accused is a municipal corporation, an officer may serve a summons personally to a mayor, a warden reeve, other chief officer, or a corporation clerk. In the case of any other corporation, an officer may serve a summons personally to the corporation’s manager, secretary, or other executive officer, or to any other person apparently in charge of the branch office. An officer can also serve a summons by sending it by registered mail to the corporation. In this case, the court will deem the summons to have been served seven days after the day of mailing. Other types of service are also available if doing so in person or by mail is impossible.
For federal offences, the provisions are nearly identical toOntarioprovincial offences (see Criminal Code R.S.C. 1985, c. C-46, Sections 509(2) and 701 for individuals and Section 703.2 for corporations).
One of the main difficulties of this step is that you must retain a provincial offences officer (or, in the case of a federal statute, a peace officer) to serve the summons, and he may not do so on time. You should give the summons to the officer as soon as possible and follow up to ensure that it has been served. You may need to obtain the assistance of counsel to find an officer to serve the summons.
You may also want to personally deliver a copy of the summons to the accused. Although an accused is not required to respond to your copy of a summons, many do not know this and appear in court. Once the accused or their legal representative appears in court, the accused is bound by the summons.
After serving a summons, an officer must swear an affidavit of service on the back of the summons. In the affidavit, the officer reports who was served and the time and the place of service and swears that the contents of the affidavit are true. The private prosecutor must then either ensure that the provincial offences or peace officer files the affidavit of service at the proper court or have a copy of the summons and affidavit of service available in court. Then, if the accused doesn’t come to court on the date specified in the summons, the court will nevertheless set a date for trial because the affidavit proves that the accused was properly notified of the charges. Without the affidavit or a copy of it, the court will not proceed, and it will be necessary to issue and serve a new summons.
On the date specified on the summons, sometimes called the “return” or “set” date, the informant and the accused tell the court what day is suitable to them for the preliminary inquiry or trial.
When setting this date you should consider whether your witnesses will be available that day, whether you will have enough time to properly prepare, and whether you will have enough time to provide the accused with proper disclosure of all relevant documents in your possession.
At this first appearance, the court may address some procedural matters. The accused may seek to have the information quashed or amended, and either party may ask for an adjournment but must satisfy the court that the time and delay are reasonable.
It is especially important for a private prosecutor to understand his duty to provide full disclosure to an accused. This is part of an accused’s right to make a full answer and defence. Until a prosecutor provides disclosure, the accused does not have to make an election as to the mode of trial (by judge or by judge and jury), if such an option is available, or make a pleading.
A prosecutor must provide all relevant information in his or her possession, whether it aids or damages the case. This evidence may include “will says” (what witnesses plan to say in court), your notes, videotapes, and documents. It does not matter whether you are planning to call this evidence at the hearing or not. You must still provide it to the defence. Also, admissibility of evidence has no bearing on disclosure. For example, if a complainant failed a polygraph test, the result would be inadmissible at trial, but you must still hand it over as part of disclosure. Moreover, you may still have to disclose your knowledge of the defendant’s bad character. The only exception is material that is clearly irrelevant, material not within your control, or material subject to a type of legal privilege. Note that the accused has a duty to ask for disclosure.
To penalize a prosecutor for non-disclosure or late disclosure, a judge may make an order for production of the evidence, recall witnesses for examination and cross-examination, allow an accused to re-elect an alternative mode of trial, make an order of costs, exclude the evidence that was not properly disclosed, declare a mistrial, adjourn the case, or most significantly, order a judicial stay in proceedings. If a defendant discovers non-disclosure after a trial, it may serve as grounds for a successful appeal.
A typical preliminary inquiry begins with a court clerk reading the information to the accused and then proceeds with the accused electing the mode of trial or, if they have already chosen, having the election read out in court. In some cases, one of the parties may seek a publication ban. The presiding judge must grant a ban if the defence asks for one, and may grant one if the Crown or private prosecutor requests one. The defence also usually seeks an order to exclude witnesses (particularly expert witnesses) from the courtroom until they give testimony.
The prosecution may begin with an opening statement or may immediately tender its witnesses. A preliminary inquiry follows the same questioning procedure as a trial: examination-in-chief by the prosecutor, cross-examination by the defence, and re-examination by the prosecutor.
The main purpose of a preliminary inquiry is to force the prosecution to present adequate evidence to justify sending the matter to trial, but the level of evidence required is not stringent. A justice will commit an accused to trial if there is admissible evidence that, if it were believed, could result in a conviction.
A preliminary inquiry may serve a private prosecution well since it preserves evidence for trial that may otherwise be lost. Evidence entered at preliminary inquiry may be admitted as evidence in the trial when the witness is dead, insane, too ill to testify, absent fromCanada, or simply refusing to testify. But this is contingent on the defence having had an opportunity to cross-examine the witness in the preliminary inquiry.
Your day in court has arrived.
The court introduces the counsel who are appearing on behalf of the informant (prosecutor) and the defence. The accused is then arraigned: The court reads the charges and asks the defendant to plead. If the defendant pleads guilty, the prosecutor must be prepared to read a statement of facts to support the charges. The court then asks the accused if the facts as stated are substantially correct. If the facts are correct the court enters a conviction. If the defendant pleads not guilty, a trial ensues.
The general structure of a trial is as follows:
• The prosecutor makes an opening statement, briefly summarizing what the prosecution intends to prove. In the opening statement, the prosecutor must state the issues and the evidence but should not make any arguments.
Some judges allow the defence to make its opening statement immediately following the statement by the prosecution if it plans to call evidence later in the case. But usually the defence does not give its opening statement until the prosecution has rested its case.
• The prosecution begins its case by calling its witnesses. When questioning its own witnesses (examination-in-chief), the prosecution is allowed to ask only open-ended questions, which allow the witness to explain the answer, rather than leading questions that suggest the answer. An exhibit can be brought into the trial only through a witness; for example, a laboratory representative can testify about test results.
• After the prosecutor has finished questioning the witness, the defence will perform their cross-examination.
• After the defence has cross-examined the prosecution’s witness, the prosecutor is entitled to re-examine the witness, but only on issues raised in cross-examination.
• After all the prosecution’s witnesses have been called, examined, cross-examined, and re-examined, the defence presents its case. The defence performs the examination-in-chief of its witnesses, followed by the prosecution’s cross-examination, and the defence’s redirection.
When cross-examining the other side’s witnesses, the prosecution and the defence may ask leading questions. Cross-examiners should ask questions that will lead to a yes or no answer and refrain from asking questions if they don’t already know their answers or if the answers will not help the case or will muddy the issue.
• After both sides have called all their witnesses, the defence closes its case.
• Both sides then give a closing address. The prosecution and defence can present arguments but should refer only to evidence the court has heard. The order of the addresses depends on whether the defence has called witnesses. If the defence has called witnesses, it goes first. If not, it goes last.
Being a witness
As the investigator or witness, you may be called upon to testify in court. At the beginning of the trial, the judge or JP may ask you and the other witnesses to leave the courtroom. Each witness will re-enter alone when called to testify. Excluding witnesses in this way allows them to testify from their own memory without being influenced by other witnesses’ testimonies. After their testimonies, the witnesses are allowed to attend the remainder of the trial.
Before giving evidence, witnesses must swear to tell the truth by taking an oath or by making an affirmation. When asked if you promise to tell the truth, you should answer “I do.”
The lawyer who asked you to appear (usually your own lawyer) will question you first. The lawyer for the other side will then cross-examine you. Your lawyer will then be allowed to redirect on issues raised in cross-examination.
• Before you appear in court, go over your statement with your lawyer.
• Bring your notes with you since you may be allowed to refer to them during your testimony.
• The court clerk may request that you speak more loudly than usual, so what you say is recorded accurately.
• Be respectful to all the parties in court.
• Address a judge as “Your Honour” and a JP as “Your Worship.”
• Remain calm and answer questions carefully. Take your time before answering. Do not repeat the question before answering it.
• If you don’t know the answer to a question, say so; don’t guess.
• When reporting on something that you did, say “I,” not “we,” even if you were not alone.
• Your testimony may be delayed, either because another witness’s testimony is taking longer than expected, the defence has entered a change in plea, or one of the parties has requested an adjournment. Take along some reading material, a friend, some snacks, and so on.
• No food or drinks are allowed in the courtroom.11
If the judge enters a conviction against the accused, both the prosecutor and the defence have the opportunity to speak to sentence – in other words, to suggest an appropriate punishment. They should request to speak to sentence and make any requests for an adjournment when the judge enters the conviction.
During sentencing, the judge may allow additional testimony. Furthermore, some information not admissible to prove guilt may be admissible when speaking to sentence. For example, bringing up an accused’s previous convictions is generally inappropriate at trial but is allowed in sentencing to establish aggravating circumstances that may justify a harsher sentence. Before rendering a sentence, the court may also consider the extent of the damage, the sensitivity of the environment, the fruits of the crime, the fine’s tax consequences, the corporation’s size and wealth, prior convictions, and government agencies’ enforcement (or lack thereof).
Step 10: Appeals and judicial review
Both the prosecution and the defence may file appeals and counterappeals.
A few restrictions apply to the private prosecutor’s right to appeal the finding of a court of first instance, in other words, the first ruling in a case:
• A prosecutor’s right to appeal must be conferred by the statute under which the action was brought.
• Only an AG, not a private prosecutor, is allowed to appeal a decision on an indictable offence.
Private prosecutors have the right to appeal in summary conviction matters for statutes governed by Criminal Code procedures (see Part XXVII, Sections 812 to 839). InOntario, these appeals are brought before a judge sitting alone in the Ontario Court (General Division) in the region, district, or county in which the adjudication was made.
Section 813(b) of the Code states that a prosecutor or informant may appeal:
• an order that stays a proceeding on an information or dismisses an information;
• a sentence passed on a defendant; or
• a verdict of not criminally responsible on account of mental disorder or unfit to stand trial.
Section 830 grants the right to appeal an acquittal, but it is highly circumscribed and is rarely granted. A party may appeal the determination of a summary conviction court on the grounds that the court:
• has erred on a point in law;
• has exceeded its jurisdiction; or
• has failed or refused to exercise its jurisdiction.
Section 830 also requires that, with one exception, the appeal be based on a transcript of the original proceedings.
Section 822(4) grants the right of appeal by trial de novo, but this only occurs in the rare instance when the trial’s transcript has a defect and the appeal court decides that the interest of justice would be better served by holding a new trial in the appeal court rather than basing an appeal on the original trial’s transcript.
The Ontario Court of Justice Criminal Proceedings Rules provide further information to guide a private prosecutor during an appeal of an acquittal. Specifically, Rule 40 (Summary Conviction Appeals) reproduces many of the sections of the Criminal Code previously mentioned but also provides guidance on how to present court documents such as appeal books, factums, and so on. It also provides guidelines for perfecting your appeal. An appeal will not be entered on a list for hearing until it is perfected (i.e., until it complies with court rules).
Sections 116 to 134 of the Provincial Offences Act (POA) govern appeals that arise out of provincial offences under Part III of the POA relating to proceedings commenced by information. Section 116(2) states that an appeal of a JP’s decision goes to the Ontario Court of Justice, presided over by a provincial judge. A decision of a provincial judge is appealed to the Superior Court of Justice. An appellant should give notice of appeal in a manner and period that are provided by the rules of the court (Section 116). See the Rules of the Ontario Court (General Division) and the Provincial Offences Act for further information. These contain all the court rules for serving the respondent, motions, filing documents, and so on.
On appeal against acquittal, the court can dismiss the appeal, order a new trial, or enter a finding of guilt.12
10. Murray Segal and Rick Libman, The 1997 Annotated Ontario Provincial Offences Act, (Toronto: Carswell, 1996), 49.
11. Some of the information in this section comes from Publications Ontario, Being a Witness in a Criminal Trial, 1997.
12. Section 9 is based on the writers’ experience and the following references: David Estrin and John Swaigen, Environment on Trial: A Guide to Ontario Environmental Law and Policy, 3rd ed. (Toronto: Edmond Montgomery Publications Ltd., 1993), 829-831. Criminal Code, Section 715. Linda F. Duncan, Enforcing Environmental Law. Martin’s Annual Criminal Code 1999, (Aurora: Canada Law Book Inc., 1999), 1161 and 1163. Murray Segal and Rick Libman, The 1997 Annotated Ontario Provincial Offences Act. Mark Sandler and Justice Fern Weinper, Criminal Procedure: Cases, Notes, and Materials, (Markham: Butterworths, 1997).