Change of Venue

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General Principles

The selection of venue of trial is "an administrative matter" of the courts and lies with the Chief Justice or their designate.[1]

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; 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.


...
R.S., 1985, c. C-46, s. 599; R.S., 1985, c. 1 (4th Supp.), s. 16.


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Burden
There is a "prima facie rule that an accused should be tried at the place which the offence is alleged to have been committed".[2]

The onus is on the applicant to establish that such an order “appears expedient to the ends of justice”.[3] A change of venue is rare and not without very good reason.[4]

Requirements
The test is whether "a fair and reasonable probability of partiality or prejudice in the jurisdiction" of origin.[5] 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."[6]

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.[7]

Change in Circumstances
Where the grounds of issuing a transfer are no longer present, the matter can be returned to the original jurisdiction.[8]

Cross-referenced Definitions
Section 2 defines "indictment", "prosecutor", and "territorial division".

  1. R v Jeffries, 2010 ONSC 772 (CanLII) at para 53
  2. R v Kellar (1973), 24 C.R.N.S. 71, p. 77
    see also R v Suzack, 2000 CanLII 5630 (ON CA) ("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")
  3. R v Suzack
  4. R v Conroy, [1995] O.J. No. 1667 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.")
  5. R v Beaudry (1966), 3 CCC 51 at p. 54
  6. R v Collins, 1989 CanLII 264 (ON CA)
    R v Charest, 1990 CanLII 3425 (QC CA), (1990), 57 CCC (3d) 312
  7. R v Threinen (1976), 30 CCC (2d) 42 at pp. 44-5 per Hughes J.
  8. Kellar, supra

Procedure

599.
...
Conditions respecting expense
(3) The court or judge may, in an order made on an application by the prosecutor under subsection (1), 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), 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) 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.


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Case Digests