Absolute and Exclusive Jurisdiction Offences

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General Principles

Under s. 553, the Provincial Court has jurisdiction that is "absolute and does not depend on the consent of the accused where the accused is charged in an information" with several classes of offences. These are classified as "absolute jurisdiction" offences.[1]

Section 553 states:

Absolute jurisdiction

553 The jurisdiction of a provincial court judge, or in Nunavut, of a judge of the Nunavut Court of Justice, to try an accused is absolute and does not depend on the consent of the accused where the accused is charged in an information

(a) with
(i) theft, other than theft of cattle [theft not exceeding $5,000],
(ii) obtaining money or property by false pretences [false pretence or false statement],
(iii) unlawfully having in his possession any property or thing or any proceeds of any property or thing knowing that all or a part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from the commission in Canada of an offence punishable by indictment or an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment [possession of stolen property],
(iv) having, by deceit, falsehood or other fraudulent means, defrauded the public or any person, whether ascertained or not, of any property, money or valuable security [fraud], or
(v) mischief under subsection 430(4) [mischief – not exceeding $5,000],
where the subject-matter of the offence is not a testamentary instrument and the alleged value of the subject-matter of the offence does not exceed five thousand dollars;
(b) with counselling or with a conspiracy or attempt to commit or with being an accessory after the fact to the commission of
(i) any offence referred to in paragraph (a) in respect of the subject-matter and value thereof referred to in that paragraph, or
(ii) any offence referred to in paragraph (c); or
(c) with an offence under
(i) section 201 (keeping gaming or betting house),
(ii) section 202 (betting, pool-selling, book-making, etc.),
(iii) section 203 (placing bets),
(iv) section 206 (lotteries and games of chance),
(v) section 209 (cheating at play),
(vi) [Repealed, 2019, c. 25, s. 251.1]
(vii) [Repealed, 2000, c. 25, s. 4]
(viii) section 393 (fraud in relation to fares),
(viii.01) section 490.031 (failure to comply with order or obligation),
(viii.02) section 490.0311 (providing false or misleading information),
(viii.1) section 811 (breach of recognizance),
(ix) subsection 733.1(1) (failure to comply with probation order), or
(x) paragraph 4(4)(a) of the Controlled Drugs and Substances Act [possession of Schedule II (cannaboids) controlled substance, indictable election].
(xi) [Repealed, 2018, c. 16, s. 219]

R.S., 1985, c. C-46, s. 553; R.S., 1985, c. 27 (1st Supp.), s. 104; 1992, c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s. 72; 1997, c. 18, s. 66; 1999, c. 3, s. 37; 2000, c. 25, s. 4; 2010, c. 17, s. 25; 2012, c. 1, s. 33; 2018, c. 16, s. 219; 2019, c. 25, s. 251.1.
[annotation(s) added]

Exclusive Jurisdiction

Under section 469, courts of criminal jurisdiction, being provincial courts, have jurisdiction over all indictable offences except for those listed in the section. These are commonly referred to as "exclusive jurisdiction" offences and cannot be tried at provincial court. While under section 553, only provincial courts have jurisdiction to try these offences unless they are accompanied by a different offence of greater jurisdiction.

Absolute Jurisdiction (s. 553) Exclusive Jurisdiction (s. 469)
  • "treason" under s. 47 (469(a)(i))
  • "intimidating Parliament or a legislature" under s. 51 (469(a)(iii))
  • "inciting to mutiny" under s. 53 (469(a)(iv))
  • "seditious offences" under s. 61 (469(a)(v))
  • "piracy" under s. 74 (469(a)(vi)) and "piratical acts" under s. 75 (469(a)(vii))
  • attempts of any of the above listed (469(d))
  • murder under s. 235 (469(a)(viii)) and conspiracy to commit murder
  • offences under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act (469(c.1);
  • the offence of being an accessory after the fact to high treason or treason or murder;
  • bribery by a holder of a judicial office under s. 119 (469(c))

All indictable offences offence are presumptive judge and jury election.[2] However, "exclusive jurisdiction" offences are those which can only be re-elected to superior court Judge-alone under s. 473, requiring the consent of both parties.

  1. See also s. 536 which requires the judge to "remand" the accused to appear before a judge in the territorial jurisdiction of the offence
  2. see s. 471

Judge Trials on Absolute Jurisdiction Offences

Remand by justice to provincial court judge in certain cases

536 (1) Where an accused is before a justice other than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under section 553 [absolute jurisdiction offences], the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed.
[omitted (2), (2.1), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

CCC


Note up: 536(1)

Judge-alone Trials on Exclusive Jurisdiction Offences

Section 473 permits an accused who is charged with a 469 exclusive jurisdiction offence to elect to be tried by a superior judge sitting without a jury.

Trial without jury

473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 [exclusive jurisdiction offences] may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.

Joinder of other offences

(1.1) Where the consent of the accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], the judge of the superior court of criminal jurisdiction may order that any offence be tried by that judge in conjunction with the offence listed in section 469 [exclusive jurisdiction offences].

Withdrawal of consent

(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
R.S., 1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994, c. 44, s. 30.
[annotation(s) added]

CCC


Note up: 473(1), (1.1) and (2)