Private prosecution applications: How to press criminal charges yourself if the police refuse to do so.

If you believe you are the victim of a crime, but the police refuse to press charges, you yourself can lay criminal charges against the perpetrator through a process in Ontario called a private prosecution.

This process is also known as the laying of a private information. It involves you, the victim or 3rd party witness to a crime, swearing before a judge or justice of the peace that you believe a criminal offence was committed. The allegation of a crime must be made under oath or affirmation in order to begin the process of having the person charged.

Pressing charges (swearing or laying an information) can be done by anyone in Canada, not just the police.

Normally pressing criminal charges is done by the police, but it doesn’t have to be. Anyone who believes a crime has been committed may do so themselves. In doing so they become the informant in the case as opposed to the police. The “information” is a legal document as per the Criminal Code that sets out what the allegation is (assault, mischief, criminal harassment, etc.) and will document what happens to the case in court. The person laying the charges is known as the informant. While in most cases this will be the police officer responding to a call or a police report being filed, anyone is able to start this process.

When a private prosecution is started by a 3rd party (victim or witness), a court date will be assigned and ultimately the Crown Attorney will review the file and decide whether to continue with the case or not. This is the same process as when the police press the charges. They file the initial paperwork (the information) and then provide all of the evidence they collected as a result of their investigation to the Crown. The Crown is always the final decision maker as to whether to proceed or not.

Many victims are unaware they can lay criminal charges themselves if the police don't want to press charges.

In cases where the victim wants charges laid and the police refuse to do so, they are often told to pursue pursue an 810 peace bond to prevent communication between them and the other party. Usually the option of a private prosecution is not mentioned so a lot of victims are unaware that they themselves can actually file criminal charges and start the process as well. People will say things like “the police won’t let me press charges” without realizing that they can press charges themselves even if the police do not want to.

Domestic disputes involving an ex, co-parent, or separated partner.

While often an allegation alone is enough to have someone charged for a “domestic” related incident in Ontario, sometimes the police will refuse to press charges even after the victim provides a statement or files a police report containing allegations of abuse. The victim may want criminal charges to be pressed but told it is a “civil” issue or that their evidence is insufficient for the police to charge.

Sometimes these are claims where one of the parties or even the victim themselves was previously charged criminally by the police. Whether they were convicted or the charges were ultimately withdrawn they still have every right to file a private information application and charge their ex if they think they are the victim of an offence.

Neighbour problems

These claims usually involve noise or other behaviour that is bothersome to the victim. Sometimes property boundaries are not respected, property is damaged, vehicles are parked where they should not be, and myriad other complaints which may be interpreted as criminal by the offended party. Police can sometimes be reluctant to file charges for mischief in these circumstances choosing instead to give a warning/caution instead and possibly recommending a peace bond application.

While talking to a civil lawyer and applying for a peace bond is often recommended, the victim can also still have the accused criminally charged by starting a private prosecution if they want to.

False accusations, lies, and public mischief charges

Sometimes the victim will be looking to have a person charged with public mischief after they themselves were criminally charged for something they were innocent of. The police can sometimes be reluctant to criminally charge someone who they view to be a victim and therefore may not file charges absent what they deem to be a clear misrepresentation or fraud. A lot of the times these are “he said, she said” type cases where it is one person’s word against the other’s. As such, these victims may seek to have their former accused charged with public mischief and/or other offences. If the police will not pursue their case, they may wish to file the charges themselves instead.

How do I start a private prosecution and what will happen once I do so?

Once all of the appropriate steps and paperwork has been completed the Crown Attorney will decide whether to proceed with the case or not. If the Crown proceeds the accused will be charged with the offences and face the same potential penalties (jail, probation, criminal record) as they would have had the police decided to lay charges. Being accused of a crime via a private prosecution application is an extremely serious, potentially life altering event for the accused.

When should I start the process of filing a private prosecution application?

A victim is free to start the process whenever they believe an offence was committed. In almost all cases, the best first step is to report the crime to the police and allow them to conduct an investigation and possibly press charges. If you have already filed a police report and have been told by the police that they have decided not to press charges, then you should consider a private prosecution if you still believe a criminal offence was committed.

Not every circumstance is appropriate for a private prosecution. The process is not meant for issues that are purely civil or do not fall within a criminal range. This being said, many complaints are subjective and opinions can vastly differ as to what is civil and what is criminal. If every case was black and white there would be no need for the courts to exist at all. The reason a private prosecution exists as an option at all is that sometimes the police get things wrong.

Does a private prosecution negatively impact a peace bond application and/or civil litigation claim?

A private prosecution does not prevent a victim from applying for a peace bond or pursuing a civil claim (for damages, defamation, etc.) against someone. While it is far less well known as an option, it exists independently and does not preclude the victim from filing other forms of claims. Also even if a private prosecution application does not ultimately result in a conviction this does not mean the accused can’t sue or still pursue a peace bond.

If a conviction is obtained this would be very strong evidence for a civil lawsuit since the evidence will have been tested to be true “beyond a reasonable doubt” in the criminal court which is a far higher burden than the “balance of probabilities” test used in the civil court system.

While the private prosecution option has always existed in Canada, it is far less well known as most victims are told to pursue a peace bond or a civil claim instead. We are unsure if court intake staff or the police intentionally fail to mention the private prosecution option to victims or not but people generally seem to be far less aware of it.

Hiring a lawyer to assist with a private prosecution application in Ontario

Many accused will hire a lawyer to assist them with the process of filing, presenting, and proceeding with a private prosecution application. Commencing criminal charges is a serious process and it is extremely important that the victim’s application is properly put before the court. A lawyer is also strongly recommended to protect the victim from potentially doing or saying something that could get them in trouble (civilly or criminally).

If you are the victim of a crime, and the police are refusing to press charges, contact us for a free no obligation price quote for assistance with a private prosecution.

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