Litigation Issues
| Author | Norman J. Groot |
| Pages | 415-464 |
CHAPTER
10
LITIGATION
ISSUES
This chapter discusses
a
number
of
topics
of
possible interest
to
private investigators
in
their role
in the
litigation process. These topics
are
separate
and
distinct
in
nature. They
include
a
review
of the law
pertaining
to
private prosecutions,
the law
pertaining
to
exe-
cuting search warrants,
the law of
privilege,
and the law of
costs.
10.1
PRIVATE PROSECUTIONS
There
has
been
a
rather sensational case where
a
private investigator commenced
a
private
prosecution
on
behalf
of
fifteen
fraud
victims
who
were bilked
out of
approximately
$650,000.
The
group originally took their complaint
to
Metro
Toronto Police Service
and
were advised that because their complaint
was for
less than
a
million dollars,
it
would take
more than
a
year
for
them
to get
around
to
investigating
it. The
group then sought
out a
certified
fraud
examiner
who
commenced
an
investigation immediately. Upon completion
of
his
investigation, this investigator took
the
evidence
to a
justice
of the
peace where
he
swore
out an
information against
the
accused.
The
private investigator also convinced
the
justice
of the
peace
to
issue
an
arrest warrant.
At
trial,
the
court acknowledged that corporations
and
citizens
are
increasingly taking
their
fraud
allegations
to
private investigators because
of the
lack
of
response
from
police.
The
court, however,
had a
number
of
criticisms
in
this particular case.
The
court opined
that when private investigators investigate
fraud
cases, they should take their
findings
to
police instead
of
proceeding
by way of
private informations themselves.
The
court also
noted that
the
private investigator
did not
take
sufficient
notes during
his
investigation, that
he
arranged
for a
camera crew
to be
present
at the
time
of the
arrest,
and
that
he did not
make adequate disclosure
to the
defence.
Despite these procedural shortcomings,
the
court convicted
the
accused.
The
court held that because
the
jury
was
apprised
of the
flaws
in the
private investigator's conduct
and
procedure
and
because
of the
serious
nature
of the
offence,
the
finding
of
guilt
by the
jury would
stand.1
1 R. v.
Hadjor,
[2000] O.J.
No.
2978
(S.C.J.).
415
416
CANADIAN
LAW AND
PRIVATE INVESTIGATIONS
Although private prosecutions
are not
common
in
Canada, their existence
is
relevant
to
a
review
of
Canadian
law and
private investigations because
of the
increasing unwilling-
ness
or
inability
of
police
to
conduct timely investigations
and
prosecutions
of
financially
related
offences.
The
most comprehensive review
of
private prosecutions
in
Canada
is
found
in a
1986
Working Paper
of the Law
Reform Commission
of
Canada entitled
Private
Prosecutions.2
In
their study,
the Law
Reform
Commission
found
that
u[t]he
power
of
pri-
vate
prosecution
is
undoubtedly right
and
necessary
. . . The
frequency
of the use of the
power
is not in our
view
an
accurate measure
of its
value.3
The
following
is a
summary
of
that report.
10.1.1 Definitions
The
Criminal
Code4
defines
the
term "informant"
to
mean
any
person
who
lays
an
infor-
mation.
The
term "justice" means
a
provincial court judge
or a
justice
of the
peace.
In
most cases,
an
informant will deal with
a
justice
of the
peace.
The
Criminal
Code
defines
the
term "prosecutor"
to
mean
the
Attorney General,
or if the
Attorney General does
not
intervene,
the
informant,
or
counsel acting
on
behalf
of
either
of
them.5
The
term "infor-
mation"
is
commonly understood
to be the
evidence given
to a
justice which
forms
the
basis
of a
criminal charge. Finally,
the
term "indictable" includes
offences
that
may
pro-
ceed
by
either indictment
or
summary conviction.
10.1.2
Laying
an
Information
All
criminal proceedings
are
initiated
by the
"laying
of an
information."
The
Criminal
Code
provides
that anyone who,
on
reasonable
and
probable grounds, believes that
a
person
has
committed
an
indictable
offence
may lay an
information
in
writing
and
under oath
before
a
justice.6
It
provides that
a
justice
who
receives
an
information shall hear
and
consider
the
allegations
of the
informant
exparte.
A
justice
has
discretion
on
whether
to
hear evidence
of
witnesses.7
It
further
provides that summary conviction
offences
shall
be
commenced
by
laying
an
information
in
Form
2.
Form
2
does
not
restrict
who may lay an
information.8
If
all the
formal
requirements
of the
alleged
offence
are
met,
a
justice
is
obliged
to
receive
the
information.
If a
justice
of the
peace
refuses
to
receive
the
information,
his or
her
decision
is
reviewable
by a
superior court
as a
matter
of
law.
An
informant's other
option
is
simply
to
seek
out a
different
justice
for a
second opinion.
2
Working
Paper
52:
Private
Prosecutions
(Ottawa:
Law
Reform
Commission
of
Canada, Catalogue
No.
J32-1/52-1986).
3
Ibid,
at 21 & 29.
4
Criminal
Code,
R.S.C. 1985,
c.
C-46.
5
Ibid.,
s. 2.
6
Ibid.,
s.
504.
7
Ibid.,
s.
507.
8
Ibid.,s.78S.
CHAPTER
10:
Litigation
Issues
417
The
informant does
not
have
to be a
witness
or a
victim
to the
alleged
offence.
Rather,
an
informant must simply have reasonable
and
probable grounds, that
is,
objectively reli-
able information,
for his or her
belief that
the
accused committed
the
offence
alleged.
Accordingly,
an
aggrieved person
can
have
his or her
counsel
or
agent
lay an
information.
Indeed,
as
seen
in the
case above,
a
private investigator
was
permitted
to act as
agent
on
behalf
of fraud
victims
for the
purpose
of
laying
an
information.
10.1.3
Compelling
Appearance
by the
Accused
Once
an
information
has
been laid
and
been accepted
by a
justice,
the
next issue
is
notify-
ing the
accused
of the
charge,
a
concept also known
as
issuing
and
confirming process.
The
Criminal
Code
provides that, upon accepting
an
information,
a
justice shall issue either
a
summons
or a
warrant
for
arrest
of the
accused
to
compel
the
accused
to
attend
court
to
answer
to a
charge.
The
section
further
provides
that
no
justice shall
refuse
to
issue
a
sum-
mons
or
warrant only because
the
alleged
offence
is one for
which
a
person
may be
arrest-
ed
without warrant.
A
justice shall issue
a
summons unless there
are
reasonable grounds
to
believe that
it is
necessary
in the
public interest
to
issue
a
warrant
for
arrest.9
10.1.3.1
Summons
If
a
justice
chooses
to
issue
a
summons,
it
shall
state
the
name
of the
accused;
the
offence
for
which
the
accused
is
charged;
and the
time, date,
and
location
of the
court
at
which
the
accused must attend.
The
summons
may
only
be
served
by a
peace
officer.
It
must
be
served
personally
or to
someone
who is
over sixteen years
old at his or her
usual place
of
residence.
If the
offence
with which
the
accused
is
charged
is
indictable,
the
accused must
also
be
fingerprinted
and
photographed pursuant
to the
Identification
of
Criminals
Act.10
10.1.3.2
Warrant
to
Arrest
A
justice
may
issue
an
arrest warrant
if the
justice
has
reasonable
and
probable grounds
to
believe
that
it is
necessary
in the
public interest
to do
so.11
Arrest warrants must state
the
name
of the
accused,
the
offence
he or she is
charged with,
and the
court
the
accused must
be
returned
to.
Arrest warrants remain
in
force
indefinitely.12
Arrest warrants shall
be
directed
to
peace
officers
in the
jurisdiction
of the
court where
the
accused
is to be
returned. Arrest warrants
may
only
be
executed
by
peace
officers.13
10.1.4
Title
of the
Prosecution
The
name under which
to
prosecute
a
criminal private prosecution
is an
issue that
has
been
addressed
by the
courts.
It is
settled law,
at
least
in
Ontario, that
all
proceedings
are
carried
on in the
name
of the
Crown, even though
a
representative
from the
Attorney
General's
9
Ibid.,
s.
507.
10
Ibid.,
s.
509.
11
Ibid.,
s.
512.
12
Ibid.,
s.
511.
13
Ibid.,
ss. 513 &
514.
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