By: Mackenzie Coleman, University of Alberta Law Student
In March, Judge Geoffrey Bayly of the Provincial Court of Manitoba allowed an application for a private prosecution to proceed in Sieklicki v Kostecki.[1]
While Crown attorneys are responsible for the prosecution of most criminal offences in Manitoba, section 507.1 of the Criminal Code allows for a private citizen to begin a criminal proceeding against another person.[2] Historically, private prosecutions have acted as a check on prosecutorial discretion—allowing for citizens to act when the Crown does not.[3]Parliament has intentionally maintained the ability to begin a private prosecution as “it is an access to justice issue, [and] it also encourages citizen participation in the criminal justice system”.[4]
Private prosecutions are an important part of the Canadian justice system because they enable citizens to address shortcomings in the public prosecution system.[5] Often the gaps in private prosecutions are caused by law enforcement agencies lacking resources to pursue violations that should be prosecuted.[6] Further, “private prosecutions allow the general public to promote ‘goals of access to justice, government transparency, and government accountability’”.[7]
Direct access to the Canadian justice system is the most important part of maintaining the right to private prosecutions. The right to initiate private prosecution is embedded in Canadian law and safeguarded by statute.[8] Having citizens participate in the justice system in this matter “promotes a general image of an effective system of administering justice within the Canadian state”.[9]
Interestingly enough, Sieklicki is not the only private prosecution case coming from Manitoba in 2025 thus far. In February, Justice Inness determined in Memaz Inc v Gauther er al that determining the merit of a private prosecution is the jurisdiction of the Provincial Court of Manitoba.[10] Justice Inness also noted the importance of private prosecutions as an access to justice tool. Memaz notes that the private prosecution “process has built-in safeguards to ensure that prosecutions are not vexatious or without an evidentiary foundation, such as the ‘pre-enquete’ hearing and the potential for intervention by the Attorney General, including taking carriage of the prosecution or staying proceedings”.[11]
Private prosecutions are retained because “they provide access to justice (recognized as a ‘Charter value’) and that they enhance government accountability”.[12] One scholar “went so far as to suggest that it was not only the privilege but the duty of the private citizen to preserve the King’s Peace and bring offenders to justice”.[13]
The Government of Manitoba states that “the Crown should not be overzealous in intervening to stay proceedings in private prosecution matters. Allowing a private citizen to bring an allegation of criminal wrongdoing before the court is an important aspect of our legal system. Denial of that wrongdoing before the court is an important aspect of our legal system. Denial of that opportunity raises access to justice issues”.[14] Allowing a victim to directly access the court may benefit the victim’s restitutive and retributive interests. A victim is more likely to feel that they obtained justice by directly accessing the courts. Along with this, a victim’s need to hold the offender accountable is met.[15] Both of these considerations are important from an access to justice perspective. A sense of justice is restored, individuals can be empowered, and gaps in the system may be filled.
An example of the importance of private prosecutions from an access to justice viewpoint was displayed in 2023 in Edmonton. Pacey Dumas, an Indigenous man, initiated a private prosecution after being kicked in the head by an Edmonton police constable and the Alberta Crown chose not to press charges against the officer.[16] Dumas’ lawyer, Heather Steinke-Attia said that the Alberta Serious Incident Response team “investigated, concluded criminal charges were warranted, and the Crown prosecution service refused to prosecute. They have effectively blocked access to justice for this family. This is the only other method that we have available to us to be heard by a judge”.[17]
Despite this, private prosecutions can be problematic from an access to justice perspective as “private citizens can lack the resources and expertise to conduct an effective prosecution, which leads to protracted litigation, wasting court time and judicial resources”.[18] As such, private prosecutions are “extremely rare, and most people recognize the overriding public interest in having criminal matters prosecuted by independent crown attorneys”.[19]
In an ideal world, private prosecutions would not be needed as Crown Attorneys or lawyers at regulatory agencies would prosecute these cases.[20] However, there are often issues regarding being understaffed and under resourced. Private prosecutions provide an alternative route for addressing grievances and ensure that concerned parties can hold offenders accountable. The ability—but not the duty—of the Attorney General to stay the prosecution safeguards the public interest that the Attorney General exercises.
[1] Sieklicki v Kostecki, 2025 MBPC 24.
[2] Ibid at para 2.
[3] Ibid.
[4] Ibid at para 16.
[5] Camille Beaudoin, Keith Geurts & Barry Stork, “Private Prosecutions in Canada” online: <https://www.lexology.com/library/detail.aspx?g=33dacdc6-c5fc-492e-850b-e63a6ffe74c5>.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Law Reform Commission of Canada, Private Prosecutions, Working Paper 52 (Ottawa: Law Reform Commission of Canada, 1986) at 27, online: < http://caledoniavictimsproject.files.wordpress.com/2010/04/1986-law-reform-commission-working-paper-privateprosecution.pdf>.
[10] Memaz Inc v Gauthier er al, 2025 MBKB 29 at para 33.
[11] Ibid at para 32.
[12] John Swaigen, Albert Koehl, and Charles Hatt, “Private Prosecutions Revisited: The Continuing Importance of Private Prosecutions in Protecting the Environment”, (18 March 2013), online: <https://cirl.ca/sites/default/files/teams/1/2013%20Symposium/ENG_Private%20Prosecutions%20Revisited_Swaigen.pdf>
[13] Ibid.
[14] Manitoba Department of Justice Prosecutions, “Policy Directive, Subject: Private Prosecutions” (March 2010), online: <https://www.gov.mb.ca/justice/crown/prosecutions/pubs/private_prosecutions.pdf>.
[15] Law Reform Commission of Canada, “Working Paper 52: Private Prosecutions” (1986), online: <https://www.ojp.gov/pdffiles1/Digitization/102951NCJRS.pdf>.
[16] Johnny Wakefield, “Private prosecution launched against Edmonton police officer spared criminal charges after kicking teenager in head” (11 September 2023), online: < https://edmontonjournal.com/news/crime/private-prosecution-launched-against-edmonton-police-officer-spared-criminal-charges-after-kicking-teenager-in-head>.
[17] Ibid.
[18] Supra, note 1 at para 3.
[19] Ibid.
[20] John Sawigen, Alberta Koehl, & Charles Hatt, “Private Prosecutions Revisited: The Continuing Importance of Private Prosecutions in Protecting the Environment” 26:1 (December 2013) 31-57.