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21 McGill L. J. 269 (1975)
Private Prosecutions in Canada: The Law and a Proposal for Change

handle is hein.journals/mcgil21 and id is 281 raw text is: Private Prosecutions in Canada: The Law and a Proposal for Change Peter Burns* I. Introduction The role of the prosecutor, whether public or private, is a very special one in any system of criminal justice. This paper' is con- cerned with an examination of the powers and obligations of the private prosecutor in Canada and with assessing the viability of retaining such a role in the light of modern judicial developments.2 For the purposes of this study, a private prosecutor is taken to be an individual, group, or corporation (other than a public authority) not acting in any public capacity.3 Although theoretically most pro- secutions are private in the sense that they are pursued by various public officers who have no powers beyond those of the private citizen, they are not private prosecutions in the sense of the term as used here4 Before turning to the Canadian position it is useful to make reference to the role of the private prosecutor in other judicial systems. In the United States there is no place for a private pro- * Professor of Law, University of British Columbia. 1 This essay is based on a paper prepared for the National Law Reform Com- mission as part of the Criminal Procedure Project's programme. The writer is grateful to the Commission, through its Chairman, Mr Justice Hartt, for grant- ing permission to publish the following material. Of course, the opinions expressed are entirely those of the writer and do not necessarily reflect the views of the Commission. 2There has been very little written concerning the private prosecutor generally, and in Canada there are only two articles on the subject: Kaufman, The Role of the Private Prosecutor: A Critical Analysis of the Complainant's Position in Criminal Cases (1960-61) 7 McGillL.J 102, and Berner, Private Prosecutions and Environmental Control Legislation: A Study (1972, Dept. of the Environment, Ottawa). 3The actual prosecutor, of course, will be the individual member of such group who lays the information. 4Cf. Howard, Criminal Justice in England: A Study in Law Administration (1931). At p.3, Howard refers to Maitland: Professor Maitland thought that it was misleading to speak of the English system as one of private prosecutions. 'It is we who have public prosecutions', he wrote, 'for any one of the public may prosecute; abroad they have state prosecutions or official prosecutions'.

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