Section 507.1 provides that a Justice may receive an information laid under section 504 by a private citizen and shall refer it to a provincial court Judge or a designated Justice to consider whether to compel the appearance of the accused on the information. The Judge or designated Justice to whom an information is referred then considers the case, determines if a case has been made out, meaning that there is some merit to the allegation, issues a summons or warrant for the arrest of the accused to compel him to attend before a Justice and answer to the charge. The receiving of an information is a ministerial act. The issuing of process is a judicial act.
If a Justice refuses to issue process, no new information may be presented unless there is new evidence in support of the allegation. This section does not apply to peace bond applications pursuant to sections 810 or 810.1 of the Code. Section 507.1 sets out the procedure to be followed for private prosecutions. A private prosecution is any information laid by someone other than a police officer, public officer or the Attorney General or his agents. The evidence is put before the Justice pursuant to section 505.
The Justice hears evidence ex parte, usually only hearing evidence of the complainant, but where desirable or necessary, also the evidence of other witnesses. The prosecutor may attend and participate. The prosecutor may do so without being deemed to have intervened in the prosecution. When a case is made out, the Justice will order execution of an appearance notice, promise to appear or a recognizance and endorse the information accordingly. The evidence must be taken on oath and as much as possible in accordance with section 540.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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