Background context

In Canada and the United States, Individuals do not file criminal charges directly against someone else. A criminal proceeding is initiated by the government.

This could be a problem because, unfortunately, law enforcement and prosecutors are not immune to societal biases against marginalized groups and may not always give their concerns the attention they deserve.

For example, in Australia, it took nearly a decade for an intentional vehicular homicide against an Asian man to be prosecuted because the police and attorneys office initially ignored the incident and failed to investigate, even though the perpetrator boasted about it publicly for years.

Question about this

What are the reasons that lead to people being NOT allowed to directly bring up criminal charges like they do civil litigation?

  • 1
    I’m voting to close because this is a place for questions about what the law says. Questions about why the law says what it does belong on SE.Politics. However apart from that its a good question and I urge you to repost it in the right place. Commented Dec 3, 2022 at 15:42
  • 2
    @PaulJohnson This is a question about criminal law - and the potential historical context surrounding it. If this question came up amongst a group of lay people - they would come to SE.Law to find it, and not SE.Politics. Therefore, I believe it would serve future users better to leave the question open.
    – AlanSTACK
    Commented Dec 3, 2022 at 15:47
  • You might like to take a look at en.wikipedia.org/wiki/Whitehouse_v_Lemon for an example of a private prosecution. Commented Dec 3, 2022 at 15:47

3 Answers 3


Your premise is not entirely correct. Canada provides a path for private prosecutions. See Criminal Code, s. 507.1, the Public Prosecution Service of Canada's guidelines on intervening in private prosecutions, and British Columbia's Crown Counsel Policy Manual policy on private prosecutions. Nonetheless, it is rare that a private prosecution is allowed to proceed.

The British Columbia manual says:

Generally, BC Prosecution Service policy does not permit a private prosecution to proceed. Crown Counsel will usually take conduct of the prosecution or direct a stay of proceedings after making a charge assessment decision.

The PPSC manual says:

If it is determined that the charge is well founded, Crown counsel must then decide whether to assume conduct of the prosecution. The issue must be decided on a case-by-case basis. Normally, there is nothing wrong in allowing a private prosecution to run its course through to a verdict. There is no requirement for the DPP to take charge of the prosecution.

However, it presents a set of considerations that might answer your question about why private prosecutions are not the norm, and why the Crown will normally intervene to either control the prosecution itself or to stay the proceedings:

  1. the need to strike an appropriate balance between the right of the private citizen to initiate and conduct a prosecution as a safeguard in the justice system, and the responsibility of the Attorney General of Canada for the proper administration of justice;
  2. the relative seriousness of the offence – generally, the more serious, the more likely it is that the DPP should intervene;
  3. there are detailed or complex disclosure issues to resolve;
  4. the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity;
  5. there is a reasonable basis to believe that the private prosecutor lacks the capacity or the funding to effectively carry the case forward to its completion;
  6. there is a reasonable basis to believe that the decision to prosecute was made for improper personal or oblique motives, or that it otherwise may constitute an abuse of the court's process such that, even if the prosecution were to proceed, it would not be appropriate to permit it to remain in the hands of a private prosecutor;
  7. given the nature of the alleged offence or the issues to be determined at trial, it is in the interests of the proper administration of justice for the prosecution to remain in private hands.

The Attorney General or Crown counsel can always direct a stay (termination) of proceedings (Criminal Code, s. 579).

Some provinces have specifically given Crown counsel an obligation to watch over private prosecutions and intervene where necessary. For example, Ontario's legislature has directed that the Crown (Crown Counsel Act):

watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition

Even in provinces where this has not been elevated to a statutory obligation, all Attorneys General / Crowns retain the capacity and discretion to supervise and intervene in private prosecutions and as a matter of practice, do.

  • Thanks for the response. "Some provinces have specifically given Crown counsel an obligation..." As opposed to what? What happens when there is no obligation? 🤔
    – AlanSTACK
    Commented Dec 3, 2022 at 16:20
  • 1
    New Zealand also allows private prosecution
    – Dale M
    Commented Dec 5, 2022 at 5:44

The simple answer is, that's what the law says. The more complex answer looks both at legislative actions and court rulings.

The relevant case for US federal law is Leeke v. Timmerman, 454 U.S. 83. The State Solicitor of South Carolina declined to pursue criminal charges against certain prison guards. Petitioner's sued, the Supreme Court then held that

The decision to prosecute is solely within the prosecutor's discretion. Thus, a private citizen has no judicially cognizable right to prevent state officials from presenting information, through intervention of the state solicitor, that will assist a magistrate in determining whether to issue an arrest warrant.

reaffirming the holding of Linda R. S. v. Richard D., 410 U.S. 614 that

a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another

So there is a rule, at least applicable to federal cases.

It may be of interest to look at the court's reasoning that resulted in that rule. The court says (emphasis added):

The threshold inquiry is whether respondents have standing to challenge the actions of petitioners. As in Linda R. S., there is a questionable nexus between respondents' injury -- the alleged beatings -- and the actions of the state officials in which they gave information to a Magistrate prior to issuance of an arrest warrant. Even without the prosecutor's acts, there is no guarantee that issuance of the arrest warrant would remedy claimed past misconduct of guards or prevent future misconduct. Even if a prosecution could remedy respondents' injury, the issuance of an arrest warrant in this case is simply a prelude to actual prosecution. Respondents concede that the decision to prosecute is solely within the discretion of the prosecutor. It is equally clear that issuance of the arrest warrant in this case would not necessarily lead to a subsequent prosecution.

A private citizen therefore has no judicially cognizable right to prevent state officials from presenting information, through intervention of the state solicitor, that will assist the magistrate in determining whether to issue the arrest warrant. Just as respondents were able to present arguments as to why an arrest warrant should issue, a state solicitor must be able to present arguments as to why an arrest warrant should not issue. This is not a case in which prison officials interfered with the transmittal of information from respondents to the magistrate, thereby interfering with respondents' ability under South Carolina law to seek the arrest of another.

On the other hand, in Washington state, private prosecution is allowed under CrRLJ 2.1(c), as affirmed recently by the state's Supreme Court: "Under the citizen complaint rule, '[a]ny person' may initiate criminal proceedings". This article discussed some of the arguments and rulings related to the private prosecution rule (arguing against private prosecution), and this article compares the US vs. the UK where private prosecution is more viable. There does not seem to be a compelling constitutional reason to prohibit private prosecution, but each jurisdiction has the power to set its own procedural rules, therefore there can be variation.


In the US, there is a prohibition on double jeopardy, so if private prosecution were allowed, then once there were a private prosecution, any governmental prosecution would be precluded. And while there certainly is a danger of bias in not bringing a prosecution, there is an even greater danger, and less accountability, of bias if private parties were allowed to prosecute.

  • You sound like governmental prosecutions are not biased. A prosecutor, no matter private or not, is a party to a case, and, thus, is biased just by definition. Whereas governmental prosecutions may be guided by certain guidelines as to the conduct, those don't go as far as aiming to eliminate bias. Those who must be unbiased are just the judge and the jury — that's their job, not the prosecutor's.
    – Greendrake
    Commented Dec 4, 2022 at 1:30
  • @Greendrake If "there certainly is a danger of bias [with governmental prosecution" sound to you like "governmental prosecutions are not biased", I'd classify that as a you problem. Commented Dec 4, 2022 at 18:21

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