There is often tension between the public’s right to commence a private prosecution, and the attorney general’s right to take over that prosecution, often in order to drop it. The Ontario Court of Appeal has given a boost to private prosecutors, ruling that they are entitled to have at least one day in court.
McHale v. Ontario is one of the continuing cases to flow from the First Nations occupation in Caledonia, Ontario, in 2006/7. McHale strongly objected to the police decision to, as he saw it, protect First Nations lawbreakers instead of non-aboriginal, law-abiding citizens. In 2006, he attempted to replace aboriginal flags with Canadian flags and was arrested and put in jail.
In 2007, OPP police Commissioner Julian Fantino wrote an e-mail to Haldimand County counsellors, instructing them not to support McHale:
“… in the event any of my officers are injured as a result of further forays into the community by McHale and his followers my position in response will be the following:
1) I will publicly hold accountable Councillor Grice AND Haldimand County along with McHale;
2) I will support any injured officer in the pursuit of civil redress;
3) I will forward the ensuing related costs of policing to Haldimand County, and
4) I will strongly recommend to my Minister that the OPP contract with Haldimand County NOT be renewed once the current contract expires.”
In 2008, McHale swore a private information against Fantino, accusing him of the criminal offence of influencing or attempting to influence municipal politicians, contrary to section 123 of the Criminal Code. A justice of the peace concluded that the allegations met Criminal Code requirements and received the sworn information. Under the criminal code, the next step is a pre-enquete, a judicial process to determine whether the accused should be compelled to appear in court to answer the accusation. Instead, a Crown Attorney took over and withdrew the charges.
McHale did not give up. He successfully applied for an order of mandamus, returning the charge to a justice of the peace to hold the pre-enquete. The Attorney General appealed to the Court of Appeal, and lost again.
The Court of Appeal recognized that the attorney general has an absolute right to take over and stay private prosecutions, both at common law, and under the Crown Attorneys Act. First, however, the informant has a right to appear in court to have his allegations and evidence heard and considered by an impartial tribunal:
 Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information.
Following the pre-enquete, the justice of the peace issues a summons, if she is satisfied that the accused person should be required to appear in court to face the accusation. Only then, once the private prosecutor has had this opportunity to establish the legitimacy of his complaint, may the Attorney General intervene.
Does all of this help a private prosecutor? The Attorney General can still block the prosecution, and often does. But a successful pre-enquete, resulting in the issuance of a summons, can provide some vindication in public interest cases, where the real battleground is for hearts and minds.