Private prosecutions are OK, just not here

Nova Scotia remains a hostile environment for private prosecution of criminal cases.

Friday, Nova Scotia Supreme Court Justice Patrick Murray denied a motion that would have forced the provincial court to hear a fraud charge brought by Jeremy Pike against an employee of the Strait Regional School Board.

Pike brought the prosecution because the Crown wouldn’t. The RCMP told him the evidence he provided supported the charge, and a federal prosecutor who reviewed the evidence also felt the charge was supported. But Nova Scotia’s public prosecution service blocked it.

The case could have been embarrassing to the school board plus current and former officials.

It all started with withdrawal of bus service from the public road in Pleasant Bay, Inverness County, where the Pikes live, during the winters of 2014 and 2015. The Strait Regional School Board refuses to discuss the matter, but an extended, blanket removal of school bus service from a public road is contrary to school board and education department policy. Road conditions are supposed to be assessed and decisions regarding bus travel made daily.

The matter before the Nova Scotia Supreme Court wasn’t about bus service. It was about whether the provincial court trial judge, Richard Mackinnon, acted properly when he agreed with the Crown to stay the proceedings, effectively quashing the fraud charge without hearing any evidence. Friday’s decision supported the trial judge.

Mr. Pike also lodged a Charter of Rights and Freedoms challenge, claiming the trial judge’s decision contravenes his right to equal benefit from the law, as guaranteed in Section 15. That, too, was disallowed by the court Friday.

Equal benefit in this case would extend rights to a private prosecution equal to those enjoyed by the Crown prosecutors.

The Law Reform Commission of Canada has maintained for decades that private prosecution should enjoy the same rights as public prosecutions, because citizen involvement in the justice system is vital and should be encouraged in a democracy.

The law commission concludes that private prosecutions are not only desirable but a necessary check on the unlimited discretion vested in the Crown.

Legal scholars have long noted that the public prosecution — the Crown — may be, or may be seen to be, hesitant to prosecute cases against governments, government agencies and employees.

Famed legal scholar Granville Williams wrote, “the power of private prosecution is undoubtedly right and necessary in that it enables the citizen to bring even the police or government officials before the criminal courts, where the government itself is unwilling to make the first move.”

Full participation of the citizen as a private prosecutor is needed to cope with the serious threat to society posed by the public prosecutor’s improper action or inaction, other scholars argue.

Nova Scotia’s public prosecutors maintain that a process to bring complaints of prosecutorial misconduct meets that need.

The public prosecution service was determined that this case would not proceed, and told the court as much.

“Should this Court disturb the stay and order the Provincial Court to conduct a hearing ... the Crown will once again direct a stay in this matter to discontinue this prosecution after the hearing is complete. Thus, the Crown poses a point, should this (Supreme) Court waste Provincial Court resources by ordering a ... hearing in a matter that will ultimately be stayed by the Crown,” the public prosecution wrote in its response to Pike’s motion.

The prosecution’s position is so firmly and unequivocally determined as to clearly demonstrate a bias against the case and the private prosecution process.

Indeed, the public prosecution service’s actions seem to support the need for private prosecutions. Not only did the prosecution stay or delay proceedings at every chance, the RCMP told Pike that the prosecution called them off their investigation of the case.

The public prosecution service rejected the possibility that a hearing may introduce evidence it was not aware of, or had not considered, and instead determined it would stay proceedings regardless of what charge might be supported by the evidence. “We have secured and preserved our individual liberty and security by evolving a system under which these still depend ultimately not upon the executive, however benevolent, nor the judiciary, however wise, but upon the active support and final judgement of our fellow citizens,” wrote Theobald Mathew in his seminal text The Office and Duties of the Director of Public Prosecutions.

In Nova Scotia, our fellow citizens’ judgment is irrelevant unless government lawyers want to take it to court.