Change of Venue

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2020. (Rev. # 92285)

General Principles

Crown Discretion to Select Venue

While once the norm, the place of trial is no longer in the sole discretion of the Crown to choose.[1] Instead, they retain discretion on choosing where a trial will take place but can be subject to an application under s. 599 to change the venue.[2]

Motion to Change Venue

The venue of trial may be changed on application under s. 599. That provision states:

Change of Venue
Reasons for change of venue

599 (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if

(a) it appears expedient to the ends of justice, including
(i) to promote a fair and efficient trial, and
(ii) to ensure the safety and security of a victim or witness or to protect their interests and those of society; or
(b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held.

(2) [Repealed, R.S., 1985, c. 1 (4th Supp.), s. 16]
[omitted (3), (4) and (5)]
R.S., 1985, c. C-46, s. 599; R.S., 1985, c. 1 (4th Supp.), s. 16; 2019, c. 25, s. 267.

CCC (CanLII), (DOJ)


Note up: 599(1)


Defined terms: "indictment" (s. 2), "prosecutor" (s. 2), and "territorial division" (s. 2)

Burden

There is a long-standing common law presumption and tradition that a trial should take place in the district where the offence ocurred.[3]

The onus is on the applicant to establish that such an order “appears expedient to the ends of justice”.[4] Traditionally, a change of venue is rare and not without very good reason with strong evidence.[5]

Requirements

The test is whether "a fair and reasonable probability of partiality or prejudice in the jurisdiction" of origin.[6] The "fundamental consideration is whether a change of venue is necessary in order to ensure that an accused has a fair trial with an impartial jury."[7]

Authorized Justice

The selection of venue of trial is "an administrative matter" of the courts and lies with the Chief Justice or their designate to decide.[8]

Transfer Outside of Province

A superior court judge cannot transfer a matter to a different province where the offence was committed entirely within the originating province or territory.[9]

Change in Circumstances

Where the grounds of issuing a transfer are no longer present, the matter can be returned to the original jurisdiction.[10]

  1. R v Davis, 2018 ONSC 4630 (CanLII), per Di Luca J, at para 21
  2. Davis, ibid., at paras 24 to 25
  3. R v Kellar(1973), 24 CRNS 71(*no CanLII links) , at p. 77 (There is a "prima facie rule that an accused should be tried at the place which the offence is alleged to have been committed")
    R v Singh, 2018 ONSC 1532 (CanLII), per Durno J, at para 150 ("There remains a presumption that a trial will be held in the place where the offence occurred. Reasons of convenience, court efficiency, and the need for members of the community in which the crime is alleged to have occurred to see justice done all continue to support holding the trial where the indictment was filed. However, in Canada there is no right to have a trial in a particular city, village or town where the offence occurred…")
    Jeffries, supra, per Gauthier J, at para 33 ("There is no doubt that the common law rule, that the trial of a matter should take place in the district, county, or place in which the offence is alleged to have occurred, is of ancient pedigree.") see also R v Suzack, 2000 CanLII 5630 (ON CA), 141 CCC (3d) 449, per Doherty JA ("It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principle serves both the interests of the community and those of the accused")
  4. Suzack, ibid.
  5. R v Conroy, [1995] OJ No 1667(*no CanLII links) , at para 9
    Salhany, Canadian Criminal Procedure 6th ed., 2-470 ("As a general rule, the court is reluctant to change the place of trial since the county or district where the offence is alleged to have been committed has prima facie jurisdiction.")
    R v Alward, 1976 CanLII 1214 (NB CA), 32 CCC (2d) 416, per Limerick JA ("The mere fact that Mr. Wil-let died as a result of a robbery in Fredericton and that there was considerable publicity disseminated by the news media would not necessarily preclude the accused from a fair and impartial trial. There must be very strong evidence of a general prejudicial attitude in the community as a whole to justify a change of venue:...")
    R v Beaudry, 1965 CanLII 690 (BC SC), 3 CCC 51, per Aikins J
  6. Beaudry, supra, per Aikins J, at p. 54
  7. R v Collins, 1989 CanLII 264 (ON CA), 48 CCC (3d) 343, per Goodman JA
    R v Charest, 1990 CanLII 3425 (QC CA), 57 CCC (3d) 312, per curiam
  8. R v Jeffries, 2010 ONSC 772 (CanLII), 86 WCB (2d) 859, per Gauthier J, at para 53 ("It may well be said that, in the context of this case, Timmins’ connection to the charge is that it is closer, and Sudbury’s connection to the charge is that it is within the same district as the place in which the offence was allegedly committed. Following the argument to its conclusion would indicate that the Crown does hold the discretion to select the venue of trial, since both venues do have some connection to the charge. The answer to this argument brings us to the third point, which is that the selection of a venue of trial is an administrative matter, for which the authority lies with the Chief Justice of the Superior Court or her statutory designate, the Regional Senior Justice.")
  9. R v Threinen, 1976 CanLII 1452 (SK QB), 30 CCC (2d) 42, per Hughes J, at pp. 44-5
  10. Kellar, supra

Procedure

599.
[omitted (1) and (2)]

Conditions respecting expense

(3) The court or judge may, in an order made on an application by the prosecutor under subsection (1) [reasons for change of venue], prescribe conditions that he thinks proper with respect to the payment of additional expenses caused to the accused as a result of the change of venue.

Transmission of record

(4) Where an order is made under subsection (1) [reasons for change of venue], the officer who has custody of the indictment, if any, and the writings and exhibits relating to the prosecution, shall transmit them forthwith to the clerk of the court before which the trial is ordered to be held, and all proceedings in the case shall be held or, if previously commenced, shall be continued in that court.

Idem

(5) Where the writings and exhibits referred to in subsection (4) [change of venue – transmission of record] have not been returned to the court in which the trial was to be held at the time an order is made to change the place of trial, the person who obtains the order shall serve a true copy thereof on the person in whose custody they are and that person shall thereupon transmit them to the clerk of the court before which the trial is to be held.
R.S., 1985, c. C-46, s. 599; R.S., 1985, c. 1 (4th Supp.), s. 16; 2019, c. 25, s. 267.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 599(3), (4) and (5)

Order is authority to remove prisoner

600 An order that is made under section 599 [change of venue] is sufficient warrant, justification and authority to all sheriffs, keepers of prisons and peace officers for the removal, disposal and reception of an accused in accordance with the terms of the order, and the sheriff may appoint and authorize any peace officer to convey the accused to a prison in the territorial division in which the trial is ordered to be held.
R.S., c. C-34, s. 528.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 600

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