Private Prosecutions Guide

Private Prosecutions

• Anyone can lay an information in writing and under oath before a judge if they believe a person has committed an indictable offense.
• The Crown can take over private prosecutions and then stay the charges, continue as a conventional prosecution, or withdraw the charges.
• If the Crown withdraws charges, a new charge must be laid to recommence the proceedings.
• If the Crown calls for no evidence at trial, the court must dismiss the charges and make a finding of not guilty. The Crown can only start the proceedings again by appealing the acquittal.

Laying Information

• Information can be laid in person before a justice of the peace, or through telecommunications devices that produce a written document.
• The justice of the peace must state the information is true.
• The existing documents used to lay an information can be an appearance notice, summons, or arrest warrant.

R. v. Pilcher

• Police officers must have probable grounds to believe in the truth of the information.
• This does not mean they must have personal knowledge of all the facts, but they can be satisfied by reliable reports from other people in the course of the investigation.

R. v. Jeffrey & R. v. Storrey

• Arresting officers must have subjective and objectively justifiable grounds for an arrest.
• Reasonable grounds for arrest must be able to be concluded by a reasonable person in the officer's position.
• Police are not required to establish a prima facie case for conviction before making an arrest.

R. v. Biron

• The term "find committing" in section 495(1)(b) means "what was apparent to the police officer".
• This means that if a police officer observes someone committing an offense, they can arrest them even if the person is later found not guilty of the offense.

R. v. Roberge

• "Finding committing" means the police officer has reasonable and probable grounds to believe an offense has been committed.

R. v. Janvier

• The smell of marijuana in a vehicle does not justify searching it.
• A police officer needs more evidence to conclude the presence of further unsmoked marijuana.

S. 9 of the Charter and R. v. Duguay & R. v. Grant

• Everyone has the right not to be arbitrarily detained or imprisoned.
• Not every unlawful arrest is necessarily arbitrary. However, the Supreme Court of Canada has made it clear that every unlawful detention is necessarily arbitrary under S. 9.

Random Stops and S. 9

• Random stops, both fixed-location and roving, are considered arbitrary detention.
• However, they are allowed under section 1 of the Charter as demonstrably justified in a free and democratic society.

R. v. Mellenthin

• A police officer improperly asked the defendant about a gym bag in his car.
• After a series of questions, the officer established reasonable grounds to believe the defendant had marijuana.
• The Supreme Court ruled that evidence obtained from an unreasonable search at a check stop is inadmissible.

R. v. Nolet

• The Supreme Court upheld a ruling that found Charter breaches and excluded evidence relating to a search of a commercial truck during a spot check.
• Even though legal requirements for a spot check were met, the further search went beyond what was justified.

Investigative Detention

• Police can detain an individual for investigatory purposes if there are reasonable grounds to suspect they are connected to a crime and the detention is necessary.
• Police can engage in a search for safety reasons during an investigative detention if they believe the accused may have a weapon.

R. v. Simpson

• The court held that there is no statutory power allowing police to detain individuals for investigatory purposes.
• Investigatory detention may be justified under common law if the detaining officer has "articulable cause" for the detention, which goes beyond a hunch.

R. v. Brown

• The court held that it is improper for police to stop someone based on their race.
• The accused must prove on a balance of probabilities that there was no articulable cause for the stop if they believe they were stopped based on their race.

R. v. Mann

• Police stopped an aboriginal man after receiving a radio dispatch message about a break-and-entry in progress.
• The police officer found marijuana on the man during a search.
• The Supreme Court ruled that the evidence was inadmissible because the search went beyond a safety pat-down.
• The only search power available during an investigative detention is a search for safety reasons if there are reasonable grounds to believe the accused has a weapon.

R. v. Yeh

• The Saskatchewan Court of Appeal ruled that police cannot use sniffer dogs to search for drugs during a brief investigative detention.
• The court emphasized the need to separate the searches for safety reasons and those for drugs.

R. v. Clayton & Farmer

• The Supreme Court ruled that police can detain vehicles at roadblocks under the totality of the circumstances.
• Once a vehicle is stopped, police may be justified to conduct a search incident to arrest, depending on the circumstances.

Test your knowledge on private prosecutions, including the process of laying information and the implications of the R. v. Pilcher case. Understand the roles of the Crown and justice of the peace in these legal proceedings. This quiz will enhance your comprehension of the nuances in criminal law.