Jurisdiction of the Courts

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General Principles

"Jurisdiction" generally refers to the legal authority or power of the court to decide an issue. [1]

It has been observed that criminal law, in contrast with civil law, is "highly territorial" and that countries should not "enforce the criminal law of other countries".[2]

Types of Jurisdiction
The three forms of jurisdiction consist of:[3]

  • prescriptive jurisdiction (also called legislative or substantive jurisdiction): The authority "to make rules, issue commands or grant authorizations that are binding upon persons and entities"
  • enforcement jurisdiction: The authority to "use coercive means to ensure that rules are followed, commands are executed or entitlements are upheld" and
  • adjudicative jurisdiction: The authority to "resolve disputes or interpret the law through decisions that carry binding force".

Issues of jurisdiction will often involve overlapping between the types of jurisdiction.[4]

  1. Reference re Judicature Act (1988), 46 CCC (3d) 203 (NBCA)(*no link) at p. 218
    R v Gray (1991), 68 CCC 193 (Ont.), 1991 CanLII 7130 (ON SC)
  2. Police File No. 2016-32834 (Re), 2016 BCPC 359 (CanLII) at para 7 citing Rafferty & S. Pitel, Conflicts of Law (Irwin: 2010), p. 56
  3. R v Chowdhury, 2014 ONSC 2635 (CanLII), at para 9
    R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, at para 58
  4. e.g. see Chowdhury, supra at para 10

Basis and Origin of Jurisdiction

Territoriality
Traditionally in criminal matters, jurisdiction has been tied to the state based on a geographic region or territory. This is known as the "principle of territoriality".[1]

From this two principles of jurisdiction arise. There is the "objective territorial principle" of jurisdiction and the "subjective territorial principle" of jurisdiction .[2] The objective principle imposes jurisdiction over acts that either being or end within the state or in which a "constituent element" of the offence takes place within the state. The subjective principle imposes jurisdiction over actions that occur or begin within the state's territory regardless of location of the consequences.[3]

Qualified Territoriality
The traditional principle of territoriality has been extended to adapt to transnational and international activities, creating concurrent jurisdiction between nations.[4] This will normally apply in cases where the harm caused by the acts of a foreign national outside of the country are felt within Canada on the basis of the “objective territorial principle”.[5] This has also been recognized in cases involving communications between two jurisdictions.[6]

Any extension of jurisdiction should be limited by the principles of "real and substantial" connection and comity between nations.[7]

Nationality
Jurisdiction can also be derived on the basis nationality for persons acting while outside of the country.[8] At common law, it is recognized that Canada has an interest in prosecuting acts of its citizens committed outside of the country.[9]

Plenary or Universal Jurisdiction
Certain circumstances have universal jurisdiction. These are typically specific offences legislated as being prosecutable in Canada irrespective of the territoriality over the matter.[10]

  1. R v Libman, 1985 CanLII 51 (SCC), [1985] 2 SCR 178 at para 11
  2. R v Hape 2007 SCC 26 (CanLII) at para 59
  3. Hape, ibid. at para 59
  4. R v Chowdhury, 2014 ONSC 2635 (CanLII), at para 11
  5. Chowdhury, supra at para 23
  6. R v McKenzie Securities Ltd., [1966], 4 CCC 29(*no link) at para 53 ("The nature of some offences is such that the can properly be described as occurring in the more than one place. This is peculiarly the case where a transaction is carried on by mail from one territorial jurisdiction to another, or indeed by telephone from one such jurisdiction to another. This has been recognized by the common law for centuries.")
  7. Chowdhury, supra at para 11, 23
    Libman, supra at para 71, 74
  8. Chowdhury, supra at para 12
    Hape, supra at para 60
  9. Chowdhury, supra at para 23
  10. Chowdhury, supra at para 15
    e.g. s. 7(2.01) and (4.1)

Legislative Jurisdiction

Parliament has the constitutional authority to legislate jurisdiction over non-Canadians' conduct outside of the country. However, where international law is violated, such intent must do so clearly and expressly.[1]

Limits on Provincial Legislation
The applicability of provincial offences does not apply to "matters not sufficiently connected to" the province.[2] "Sufficiency" depends on "the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated".[3]

Out-of-province application of provincial offences must constrained by the principles of "order and fairness". These principles are purposive and are applied flexibly.[4]

  1. R v Chowdhury, 2014 ONSC 2635 (CanLII), at paras 20 to 21
    Hape, supra
  2. Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40 (CanLII) at para 56
  3. Unifund, ibid.
  4. Unifund, ibid.

Adjudicative Jurisdiction

For a court to have "adjudicative jurisdiction" to decide a matter, the court must have jurisdiction over both the offence and the person.[1] These must be treated as distinct and separate elements.[2]

In criminal matters, the adjudicative jurisdiction is limited by section 6(2) of the Code which prohibits "extraterritorial jurisdiction".[3] It states that:

6
...
Offences outside Canada
(2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.
...
R.S., 1985, c. C-46, s. 6; R.S., 1985, c. 27 (1st Supp.), s. 4, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.


CCC

There are several statutory exceptions within the code for certain types of offences including those that occur in space, on planes, and in boats as well as war crimes and crimes against humanity.[4]

Attention should be paid to whether the province has provincial legislation that dictates the jurisdiction of the court over persons and subject matters.[5]

Jurisdiction to Adjudicate Certain Rights
Before a Court can adjudicate matters including Charter rights the Court must be a "court of competent jurisdiction", which requires authority over: 1) the person(s); 2) the subject-matter; and 3) the remedy.[6]

  1. R v Chowdhury, 2014 ONSC 2635 (CanLII), at para 13
  2. Chowdhury, supra at para 13
  3. Chowdhury at para 14
  4. Chowdhury at para 15
    see also s. 7
  5. e.g. British Columbia: Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28
    Nova Scotia: Court Jurisdiction and Proceedings Transfer Act, SNS 2003 (2d Sess), c 2
    Saskatchewan: The Court Jurisdiction and Proceedings Transfer Act, SS 1997, c C-41.1
  6. R v Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 - considering the jurisdiction under s. 24(1) of the Charter to grant remedies

Principles Limiting Jurisdiction Outside of Canada

See also: Extra-Territorial Jurisdiction of the Courts

Jurisdiction of Courts

See also: Election and Criminal Courts

Superior Court

A Superior Court has "inherent jurisdiction" that is derived from s. 96 of the Constitution Act, 1867. This is also referred to as “original and plenary jurisdiction”. This means that the Superior Court has jurisdiction over all civil and criminal matters unless expressly removed by statute.[1] However, the “core powers” of the superior court cannot be removed by statute without violating s.96 of the Constitution Act 1867.[2]

Section 468 of the Criminal Code, provides authority over indictable offences unless the Province of the particular Superior Court lacks a real and substantial connection to the offence itself.

Superior court of criminal jurisdiction
468 Every superior court of criminal jurisdiction has jurisdiction to try any indictable offence.
R.S., c. C-34, s. 426.


This "inherent jurisdiction" also provides power to control the judicial process and to remedy unfairness.[3]

Section 470 states:

Jurisdiction over person
470. Subject to this Act, every superior court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try an accused for that offence

(a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or
(b) if the accused has been ordered to be tried by
(i) that court, or
(ii) any other court, the jurisdiction of which has by lawful authority been transferred to that court.

R.S., 1985, c. C-46, s. 470; R.S., 1985, c. 27 (1st Supp.), s. 101.


CCC

  1. MacMillan Bloedel v Simpson Ltd, 1995 CanLII 57 (SCC), [1995] 4 SCR 725
  2. See McMillan Bloedel v Simpson Ltd., ibid.
  3. R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262
    R v Pilarinos, 2001 BCSC 1332 (CanLII), (2001) 158 CCC 1 (BCSC)

Provincial and Territorial Court

A Provincial or Territorial Court has jurisdiction derived by statute alone and depends on the Criminal Code for the source of its authority.[1] That authority must be explicitly provided by statute or by necessary implication.[2]

A provincial court has “authority to control the court’s process” as well others authorities derived by necessary implication. However, the authority must be exercised “according to the rules of reason and justice”[3]

Section 798 found in part XXVII of the Code [Summary Convictions] states that:

Jurisdiction
798. Every summary conviction court has jurisdiction to try, determine and adjudge proceedings to which this Part applies in the territorial division over which the person who constitutes that court has jurisdiction.


R.S., c. C-34, s. 733.


CCC

Geographic Boundaries
Provincial Court judges are limited to only exercise authority "within their territorial jurisdiction".[4]

Section 2 states that a territorial division "includes any province, county, union of counties, township, city, town, parish or other judicial division or place to which the context applies". This term is to be read strictly to refer only to divisions within Canada and not international boundaries.[5]

  1. R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597
    R v SJL, 2002 BCCA 174 (CanLII), (2002), 163 CCC (3d) 560 (BCCA)
  2. R v SJL, ibid. at para 23
  3. eg. see R v Price, 2010 NBCA 84 (CanLII)
  4. Re The Queen and Smith (1974), 12 CCC (2d) 11 (N.B.C.A.) at p. 9 ("Inferior Courts can exercise their powers only within their territorial jurisdiction")
    see also Extra-Territorial Jurisdiction of the Courts
  5. R v OB, 1997 CanLII 949 (ON CA) at para 9

Appellate Court

An appellate court only has jurisdiction that is provided to it by statute and so can only hear appeals permitted under statute.[1]

  1. R v Kevork (1985), 21 CCC (3d) 369(*no link)

Youth Justice Court

A youth justice court refers to either a provincial court or superior court that has jurisdiction over young persons, and adult who commit offences as a young person, by virtue of s. 13 of the YCJA. This jurisdiction over young persons is exclusive.[1] While sitting as a youth justice court, the judge or justice maintains their original powers and jurisdiction.[2]

  1. s. 14 of the YCJA
  2. See s. 14(7) in reference to a superior court
    see s. 14(6) in reference to a summary conviction provincial court

Jurisdiction Over Persons

Section 470 enables both provincial and superior courts to try an accused for an indictable offence where:

  • the accused "is found, is arrested or is in custody within the territorial jurisdiction of the court" or
  • the accused "has been ordered to be tried by" the same court or any other court "the jurisdiction of which has ... been transferred to that court".

This power will be subject to limitations including those found in s.478 which prohibits prosecution of an offence occurring entirely in another province unless it is for the purpose of receiving a guilty plea in accordance with its provisions.

Charter does not apply to actions of foreign authorities acting outside of the country. [1]

  1. see "Charter Rights Outside of Canada" above

Adults

The Courts have jurisdiction over an accused by virtue of their presence in court.[1] The accused is required to be present for all indictable matters. It is because the accused must be a part of all matters of "vital interest". [2] The accused must be present at trial so as to hear the case against them.

For Summary matters the court may proceed without the presence of the accused except if liable for more than 6 months imprisonment.[3] This would include trial matters by way of an ex parte motion.[4]

The law does not recognize "conditional appearances to contest service".[5]

  1. s.470(a)
    Gordon v Canada, 1980 CanLII 373 (BC CA)
  2. R v Vezina; Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2
  3. s. 800(2) and 802.1
  4. s. 803(2)(a)
  5. R v Sinopec Shanghai Engineering Company Ltd., 2011 ABCA 331 (CanLII)

Designations of Counsel

See also: Representation at Trial

As stated, the Courts have jurisdiction over an accused present in court. The accused may appoint counsel to represent them for any proceedings under the Criminal Code by filing a designation of counsel pursuant to s. 650.01(1). [1] Where a designation has been properly filed with the Court the accused does not need to be present for certain court appearances except for when oral evidence is being heard.[2] As such the Court will not lose jurisdiction over the accused due to his or her absence.[3] A valid designation must contain the name and address of the counsel, as well as set out the charge(s) and date(s) of alleged offences or any particulars identifying the matters, and it must be signed by the accused and designated counsel.[4]

Designation of counsel of record
650.01 (1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court.
Contents of designation
(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.
Effect of designation
(3) If a designation is filed,

(a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than
(i) a part during which oral evidence of a witness is taken,
(ii) a part during which jurors are being selected, and
(iii) an application for a writ of habeas corpus;
(b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and
(c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise.

When court orders presence of accused
(4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may

(a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or
(b) issue a warrant to compel the presence of the accused.

2002, c. 13, s. 61.



  1. R v Golyanik (2003), 173 CCC 307 (SCJ), 2003 CanLII 64228 (ON SC)
    R v C(JJ), 2003 ABPC 31 (CanLII), (2003), 12 AtlaLR 191
    R v L(GY), 2009 CanLII 38516 (ON SC), 2009 84 WCB 341 (SCJ)
  2. s. 650.01(3)(a)
  3. For indictable offences, the Court will only have jurisdiction over the accused where they are present in court for an appearance. Otherwise, the charge will be a nullity and voidable
  4. s. 650.01(2)
    R v Butler, 2010 NSSC 284 (CanLII) - rejected designation for no listed charges

Special Classes of Persons

The Crown is generally immune from prosecutions for executive conduct unless statute otherwise directs.[1]

  1. see s. 17 of Interpretation Act

Youths

See also: Sentencing Young Offenders

Section 14 of the Youth Criminal Justice Act states this about jurisdiction:

Exclusive jurisdiction of youth justice court
14 (1) Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act, a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act.


YCJA

A court cannot have jurisdiction over any person under the age of 12.[1] This date is set as of the date of the offence. [2] Offences that occur during the accused's 18th birthday will given jurisdiction to the Youth Court.[3]

A justice of the peace may carry out proceedings under the Criminal Code except for pleas, trials and adjudication. (s. 20(1)) This includes determining bail, but is reviewable by a youth court judge.(s. 33(1))

A justice of the peace may place an accused on a consent peace bond. If the accused refuses, the matter can be dealt with by a youth court judge. (s.20(2))


The YCJA creates the Youth Justice Court and the Youth Justice Court Judge under s. 13.

Where an accused who is charged as a "young person" turns 18, the Youth Justice Court still maintains jurisdiction. (s. 14(4)) Likewise, a person who is over 18 at the time of arrest will be subject to the YCJA if the incident occurred while he was a "young person" (s. 14(5)).

Justices of the Peace may perform all the same functions as a Youth Justice Court Judge except for pleas, trials, and adjudication (s. 20(1)).

Section 13 of the Code states:

Child under twelve
13 No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.
R.S., c. C-34, s. 12; 1980-81-82-83, c. 110, s. 72.


  1. see s. 13 of the Criminal Code
  2. see s. 16 YCJA and R v McDonald, 1985 CanLII 162 (ON CA)
  3. see s. 16

Proving Age

The Crown has the onus to prove that the age of the accused is within the jurisdiction of the YCJA beyond a reasonable doubt.[1]

Children and Young Persons

Testimony as to date of birth
658. (1) In any proceedings to which this Act applies, the testimony of a person as to the date of his or her birth is admissible as evidence of that date.
Testimony of a parent
(2) In any proceedings to which this Act applies, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person.
Proof of age
(3) In any proceedings to which this Act applies,

(a) a birth or baptismal certificate or a copy of such a certificate purporting to be certified under the hand of the person in whose custody the certificate is held is evidence of the age of that person; and
(b) an entry or record of an incorporated society or its officers who have had the control or care of a child or young person at or about the time the child or young person was brought to Canada is evidence of the age of the child or young person if the entry or record was made before the time when the offence is alleged to have been committed.

Other evidence
(4) In the absence of any certificate, copy, entry or record mentioned in subsection (3), or in corroboration of any such certificate, copy, entry or record, a jury, judge, justice or provincial court judge, as the case may be, may receive and act on any other information relating to age that they consider reliable.
Inference from appearance
(5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, as the case may be, may infer the age of a child or young person from his or her appearance.
R.S., 1985, c. C-46, s. 658; 1994, c. 44, s. 64.


CCC

The age of the accused can be permitted by way of hearsay.[2]

Testimony of a parent
148 (1) In any proceedings under this Act, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person.
Evidence of age by certificate or record
(2) In any proceedings under this Act,

(a) a birth or baptismal certificate or a copy of it purporting to be certified under the hand of the person in whose custody those records are held is evidence of the age of the person named in the certificate or copy; and
(b) an entry or record of an incorporated society that has had the control or care of the person alleged to have committed the offence in respect of which the proceedings are taken at or about the time the person came to Canada is evidence of the age of that person, if the entry or record was made before the time when the offence is alleged to have been committed.

Other evidence
(3) In the absence of any certificate, copy, entry or record mentioned in subsection (2), or in corroboration of that certificate, copy, entry or record, the youth justice court may receive and act on any other information relating to age that it considers reliable.
When age may be inferred
(4) In any proceedings under this Act, the youth justice court may draw inferences as to the age of a person from the person’s appearance or from statements made by the person in direct examination or cross-examination.


  1. See R v K.(P.A.), 1992 CarswellNfld 125 (Nfld.S.C.)(*no link) at paras 37 to 38
  2. See s. 658
    R v C.(I.), 2010 ONSC 330 (CanLII)
    R v Male, 2013 MBPC 12 (CanLII)

Persons Outside of Country

An offence by a foreign national while outside of the country will not create jurisdiction over the person to prosecute an offence. However, should the person enter into the territorial jurisdiction of the courts, jurisdiction over the person will exist.[1]

Where jurisdiction over the person does not exist. A stay may be entered on the charge until such time as the Crown applies to withdraw the stay.[2]

Breach of Canadian Court Orders
An order that prohibits the possession of a firearm, including probation, recognizance or 109/110 Order, can still apply whether or not the person is within Canada. [3]

Contact prohibitions will apply to accused’s who attempt to contact the person who is located outside the country.[4]

  1. e.g. R v Chowdhury at paras 54 to 57
  2. e.g. Chowdhury
  3. R v Rattray, 2008 ONCA 74 (CanLII) - accused bought rifle while in Michigan, no evidence of possession within Canada
    see also R v Greco, 2001 CanLII 8608 (ON CA)
  4. e.g. R v Stanny, 2008 ABQB 746 (CanLII) - accused on condition not to contact bank branches. He wrote to branch in England and was convicted of breach

Jurisdiction Over Subject Matter

Section 553 is procedural in nature and does not usurp the jurisdiction of superior court on matters that have properly been brought before it.[1]

An offence is triable in the Canadian courts so long as a "significant portion of the activities constituting the offence took place in Canada" is sufficient that there is a real and substantial connection.[2]

Where an offence occurs, in whole or in part, outside of the territorial jurisdiction of the court, the principle of comity still permits courts to take jurisdiction over the subject where there is a real and substantial connection between the territory and the offence.[3]

  1. R v Manitopyes, 2012 SKQB 141 (CanLII) at para 69
  2. R v Libman (1985), 1985 CanLII 51 (SCC), 21 CCC (3d) 206, 21 D.L.R. (4th) 174, [1985] 2 SCR 178
    see also R v Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d)
  3. Chowdhury v H.M.Q., 2014 ONSC 2635 (CanLII) at para 26

Offences Between Jurisdictions

Special jurisdictions
476. For the purposes of this Act,
...

(b) where an offence is committed on the boundary of two or more territorial divisions or within five hundred metres of any such boundary, or the offence was commenced within one territorial division and completed within another, the offence shall be deemed to have been committed in any of the territorial divisions;
(c) where an offence is committed in or on a vehicle employed in a journey, or on board a vessel employed on a navigable river, canal or inland water, the offence shall be deemed to have been committed in any territorial division through which the vehicle or vessel passed in the course of the journey or voyage on which the offence was committed, and where the center or other part of the road, or navigable river, canal or inland water on which the vehicle or vessel passed in the course of the journey or voyage is the boundary of two or more territorial divisions, the offence shall be deemed to have been committed in any of the territorial divisions;

...

(e) where an offence is committed in respect of the mail in the course of its door-to-door delivery, the offence shall be deemed to have been committed in any territorial division through which the mail was carried on that delivery.

R.S., 1985, c. C-46, s. 476; R.S., 1985, c. 27 (1st Supp.), s. 186; 1992, c. 1, s. 58.


CCC

Between Territorial Divisions Within the Province
Where the offence has occurred outside regular territorial divisions, such as in an "unorganized tract of country", lake or river, then any territorial judicial district may have jurisdiction over the matter:

Offence in unorganized territory
480 (1) Where an offence is committed in an unorganized tract of country in any province or on a lake, river or other water therein, not included in a territorial division or in a provisional judicial district, proceedings in respect thereof may be commenced and an accused may be charged, tried and punished in respect thereof within any territorial division or provisional judicial district of the province in the same manner as if the offence had been committed within that territorial division or provisional judicial district.
New territorial division
(2) Where a provisional judicial district or a new territorial division is constituted in an unorganized tract referred to in subsection (1), the jurisdiction conferred by that subsection continues until appropriate provision is made by law for the administration of criminal justice within the provisional judicial district or new territorial division.
R.S., c. C-34, s. 436.


CCC

Between Provinces
Where an ongoing offence begins in one province and ends in another province, s. 476(b) convey jurisdiction over both jurisdictions to try the case.[1]

Between International Boundaries
Courts will take jurisdiction over the subject matter of activities of persons outside of the country on the basis of qualified territoriality.[2]

Where the offence constituent elements include phone, email or other types of electronic communication over borders, typically concurrent jurisdiction will exist between the two ends.[3]

  1. Regina v Bigelow, 1982 CanLII 2046 (ON CA) appeal to SCC refused -- offence of child abduction from Ontario to Alberta
    R v D.A.L., 1996 CanLII 8371 (BC CA) - sexual assault between accused and victim occurring in three different provinces
  2. see above re "Territoriality"
  3. e.g. R v Frank, 2013 ABPC 21 (CanLII) - harassing emails
    R v McKenzie Securities Ltd., [1966], 4 CCC 29(*no link) at para 53

Offences Occurring on Water

Offences Occurring in Air or Space

See Also