Referral when private prosecution
507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.
Summons or warrant
(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.
Marginal note:Conditions for issuance
(3) The judge or designated justice may issue a summons or warrant only if he or she
(a) has heard and considered the allegations of the informant and the evidence of witnesses;
(b) is satisfied that the Attorney General has received a copy of the information;
(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and
(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.
Appearance of Attorney General
(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.
Information deemed not to have been laid
(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.
Information deemed not to have been laid — proceedings commenced
(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.
New evidence required for new hearing
(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.
Subsections 507(2) to (8) to apply
(8) Subsections 507(2) to (8) apply to proceedings under this section.
Non-application — informations laid under sections 810 and 810.1
(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.
Definition of designated justice
(10) In this section, designated justice means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.
Meaning of Attorney General
(11) In this section, Attorney General includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.
Annotations | French
- Section 507.1
- “Warrant” is defined in s. 493; Criminal Code, RSC 1985, c C-46, s 493.
- “Summons” is defined in s. 2; Criminal Code, RSC 1985, c C-46, s 2.
- Subsection (3) confirms the validity of private prosecutions by setting out a process to ensure that only legitimate claims proceed. The pre-enquete must be conducted by a designated justice or provincial court judge who will hear and consider the allegations of the private informant and the evidence of witnesses. Unlike section 507(1)(a)(ii), which applies to informants who are law enforcement officers or officials, under subsection (3) a justice must hear the allegations of the private informant and the evidence of their witnesses: McHale v Ontario (Attorney General), 2010 ONCA 361 at para 47.
- To lay an information, a private informant must complete a standard form that includes details of the alleged offence and lists the names, addresses, and phone numbers of witnesses who will be relied on. A private informant must also disclose any prior attempts at laying an information and whether the police have investigated the alleged offence: McHale v Ontario (Attorney General), 2010 ONCA 361 at para 6.
- Where the information is valid on its face, meaning it presents a case of the offences alleged, process will usually issue. However, in the clearest cases, the court has limited discretion to decline a private prosecution. Some examples of the “clearest of cases” include the informant or their witness being found uncredible or the court finding the charge “frivolous, vexatious, or abusive”: Canadian Broadcasting Corporation v Morrison, 2017 MBCA 36 at paras 21-22.
- A pre- enquete hearing is a non-adversarial process governed by statute. The hearing is a private (in camera) ex parte court proceeding where the accused does not have a right to be present, even when aware of the proceedings. During the hearing, the possibility of conviction or possible defences the accused might raise are not considered: Canadian Broadcasting Corporation v Morrison, 2017 MBCA 36 at para 21.