Prosecutions consist of five (5) basic parts:
Laying the information
issuing the summons
serving the summons
setting the trial date
the trial
1. Laying the Information
The first step is to go to a justice of the peace
(JP) at your local court and sign a form on which you set out the details of
the alleged offence. This form is called an "information," and you are
referred to as the "informant." The JP then asks you to swear that this
statement is true, and the JP signs his or her name as a witness. This process
is called "swearing the information." Formal charges have now been laid.
Draft the charges with care, because inaccurate information may hurt your
chances of a successful prosecution. Often the JP will draft the charges for
you, or you may wish to fill out the form with the help of a lawyer. Here are
some tips:
The forms used for provincial offences are different from those for federal
offences, so be sure you get the right one.
Be sure to lay the information promptly. Under the Ontario Provincial Offences
Act and the summary conviction provisions of the Criminal Code, you have only
six months from the time an offence occurred to lay the charges. Some statutes
have shorter or longer limitation periods.
Be precise. It is safest to follow the wording of the statute describing the
offence (e.g., the Highway Traffic Act) as closely as possible.
State the specific date and place where the offence occurred, and give the
name of the accused in full. If the accused is a corporation, use the full
corporate name.
When the information relates to more than one breach of the law, set out each
offence in a separate "count" (separately numbered paragraphs each setting
out all the details of one offence).
When laying charges under the Highway Traffic Act against the registered owner
of a motor vehicle, set out not only the section of the Act that was violated
but also that the violation occurred contrary to section 207, the section that
makes the owner liable for violations by the driver.
2. Issuing the Summons
The JP has no discretion in swearing the information
– he or she can't refuse to do it. However, the JP does have discretion not to
take the next step: issuing the summons to the accused. The summons is a copy
of the information that also states the time and place where the accused must
appear to answer the charges.
JPs are mainly used to issuing summonses for the police, and some JPs may be
reluctant to issue a summons requested by a private citizen. The JP can ask
you probing questions, so it is advisable to be well prepared when you visit
the JP to swear the information, and even to bring a lawyer with you if you
anticipate difficulty.
If the JP issues the summons, he or she will usually make it "returnable"
in about two to four weeks' time. At least two weeks should be allowed, so
there is enough to serve the summons on the accused. The "return
date" will not be the trial date, but the date
when the prosecutor and the accused appear in court to set a date for the
trial.
3. Serving the Summons on the Accused
Serving the summons means delivering the summons to
the accused. Serving a summons is generally valid only if it is done by a
designated person – usually a police officer. [The staff of the county and
district sheriff's offices are also peace officers, and for a fee they may
serve summonses for you. Give them the summons as early as possible and follow
up with them to check that the summons has been filed.]
To be on the safe side, it's a good idea to also personally deliver or mail a
copy of the summons to the accused. Even though the accused is not required to
respond, many people do not know this and will come to court. Once the accused
or his or her lawyer appears in court, the accused is bound by the summons,
even if he or she need not have appeared.
Once a summons has been served, the person who served it must fill out and
sign an "affidavit of service" on the back of a copy of the summons. This
affidavit sets out the identity of the person served with the summons, and the
time and place the summons was served. It is then up to you to make sure the
copy of the summons with its affidavit of service is filed in the proper court
before the return date (this will mean chasing up the police officer or
whoever served the summons).
4. Setting the Trial Date
On the return date, the informant and the accused or
their lawyers meet to set a trial date. Choose a date far enough away to give
you time to prepare, and to give the accused written notice of all the
documents you intend to use as evidence. (Otherwise the documents may be
inadmissible.) Also make sure you choose a date when all your witnesses are
available.
The court will set a trial date and adjourn the case to that day.
If the accused does not turn up on the return date, the court will go ahead
anyway and set a date for the trial. But if the affidavit of service has not
been filed with the court, the court will not proceed, and a new summons will
have to be issued.
5. The Trial
You have the right to conduct your own
prosecution, or to have a lawyer do it. Private prosecutions are not
unusual, and private citizens often lay charges and prosecute them on their
own in simple cases.
In the event any government official fails to perform a duty, or by way of action or inaction, blocks your lawful attempt to prosecute the matter, you may file "Obstruction of Justice" charges against those parties and/or agents in the same manner you filed your original private prosecution.
For example, if a government policy blocks the common law [or constitutional] RIGHT to prosecute a criminal offence, you should take the government [as represented by the Minister responsible] to court.
Failing that, your remedy is to find or open a common law court and deal with the matter under common law tradition. Notwithstanding the opinion or man made "law" of a government, you can NEVER be lawfully denied your right to remedy and recourse within the common law principle of RULE OF LAW, to which the parliament of Canada willing consented to in the Canada Act, 1982. [Related link]
There is a wonderful tool available to citizens in this land called the Freedom Of Information Act. In BC, we also have the Freedom of Information and Protection of Privacy Act. These Acts are your tool for obtaining any documents that may relate to the events you are investigating.
PREPARING A BRIEF
The "Brief" is the document that contains all of the facts in the matters you
are raising. This document should contain:
1) A copy of the Information; The "Information" is a standard court document,
obtainable from any court.
2) A list of the Accused;
3) 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, permits, etc..;
4) A list of the witnesses that will be relied upon;
5) Witness statements or 'Will Says". These are summaries of what the
witnesses are each expected to testify to based on their knowledge of the
events;
6) A list of exhibits. The exhibits are the documents, photographs,
videotapes, etc.. that you will rely on and are appended in the order they are
referred to in the synopsis.
If the Accused is a corporation, you will have to verify the true name of the
company to ensure the proper organization, or Ministry in right of the Queen,
is being charges.
Example of an "Information"
Court File Number
Numero de dossier de la Court
Court File Number
Numero de dossier de la Court
CANADA: Province of British Columbia
Province de la Colombie-Britannique
Information/Denonciation
This is the information of/Les presentes constituent la denonciations de
"Your Name" (the "informant"/le "denonciateur")
"Your Occupation of/de "Your Address"
(Occupation)
The informant says that he has reasonable and probable grounds to believe and
does believe that/Le denonciateur declare qu'il a des motifs raisonnables et
probables de croire effectivement que
Count 1
A COMPANY, between the 25th day of November 1996 and the 15th day of March
1997, in a provincial forest, on Crown land, at or near the upper Whosit
River, approximately 8km from the head of Whosit Lake, and approximately 54 km
north of the town of Nowheresville, in the Province of British Columbia, while
carrying out a forest practice, to wit, forestry road construction, and upon
finding resource features, to wit, unnamed streams and wetlands that were not
identified on an approved operational plan or permit, did unlawfully fail to
modify or stop the forest practice that was in the immediate vicinity of the
previously unidentified resource features to the extent necessary to refrain
from threatening them, contrary to Section 51(2)(a) of the Forest Practices
Code of British Columbia Act, RSBC 1996, C.159, as amended, and did thereby
commit an offence contrary to Section 143(2) of that Act.
Count 2
Etc...
SWORN BEFORE ME/ASSERMENTE DEVANT MOI
ON/LE 19
(Signature of Informant/Signature du denonciateur)
AT/A Process Confirmed
British Columbia/Colombie-Britannique ACTE DE PROCEDURE CONFIRME
A Justice for the Peace in and for the Province of British Columbia A Justice
for the Peace in and for the Province of British Columbia
Juge de paix dans et pour la province de la Colombie-Britannique Juge de paix
dans et pour la province de la Colombie- Britannique
REGISTER FILE/DOSSIER DU GREFFE
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