August 2, 2006
Under the Criminal Code and Canadian common law, every person has the right to initiate a private prosecution against an alleged offender. A private prosecution occurs when an individual, or a group of individuals, gathers evidence of a wrongdoing, lays charges against the alleged offender, and then has those charges approved by a Provincial Court Judge. A private prosecution is intended to enforce the law – often when the government has failed to enforce its own laws.
Douglas Chapman, an investigator working with Sierra Legal Defence Fund, laid a private “information” today against the GVRD and the Province before a Justice of the Peace at the North Vancouver Provincial Court. An information, whether laid by a private citizen like Mr. Chapman or by the police, is commonly known as a “charge.” It is a sworn allegation, made before a Provincial Court Judge or a Justice of the Peace, that the Informant believes an offence has been committed.
Mr. Chapman wants his charge to result in a prosecution against GVRD and the Province for their alleged violation of section 36 of the federal Fisheries Act, which states:
36.(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.
If the Justice of the Peace finds the citizen’s charge is complete, then a “process hearing” (or a “charge confirmation hearing”) is scheduled before a Provincial Court Judge. At this process hearing, there may be testimony by the Informant and additional witnesses, cross-examination, and legal argument. Crown Counsel for the provincial Attorney General is also entitled to participate in this hearing.
At this charge confirmation hearing, if the Provincial Court Judge finds there to be sufficient evidence of the alleged offence, he or she will issue a summons compelling the accused to appear in Court at a specified date and time to answer the charges (either by plea or by trial).
If a summons is issued, then Sierra Legal Defence Fund and Mr. Chapman will work to bring the private prosecution to trial, or to obtain appropriate pleas.