Author: Patrick Ducharme

Although this legislation appears to give an accused the right to appeal from the dismissal of an application for certiorari, including an application to quash an order to stand trial, or, mandamus or prohibition, the accused does not have the right to a stay of the trial proceedings pending the appeal. The power to grant a stay is discretionary, the test being whether the accused can show the existence of a serious question, and, unless a stay is granted he would suffer irreparable harm, and, that the balance of convenience favours granting the stay.1
Continue reading “No Automatic Stay of Trial Pending Appeals Under 784”

Section 13 of the Criminal Code of Canada (“the Code”) provides that no person shall be convicted of an offence while that person was under the age of twelve. Age is measured by chronological age and not according to intellectual capacity. Although the Code exempts a child from criminal liability, an adult may still be found to be a party to an offence committed by someone less than twelve years of age.

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Certiorari is a remedy that seeks to have the Superior court of a Province review proceedings in the Provincial Court to determine if the lower court has acted without, or, in excess of its jurisdiction. The applicant seeks to demonstrate that the decision of the lower court either exceeded its jurisdiction or had no jurisdiction to make the decision challenged. If the Superior Court agrees, it quashes the decision of the lower court. The Superior Court may also give directions to the lower court as to how to proceed now that its earlier decision has been quashed.

Continue reading “The Extraordinary Remedies”

As a general rule, since crime is considered local, a trial must take place in the county or territorial division where the offence took place.1 However, a court before which an accused is or may be indicted, may, at any time before or after an indictment is found, on either the application of the prosecutor or the accused, order that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried if “it appears expedient to the ends of Justice or a competent authority has directed the jury is not to be summoned at the time appointed in a territorial division where a trial would otherwise by law be held”.
Most applications for a change of venue are based upon strong evidence of a general prejudicial attitude in the community against the accused. The Crown does not have a right of appeal from an order changing the venue of a trial. It is improper to bring successive applications for a change of venue, unless new grounds have arisen since a previous application.

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There is a distinction to be made between jurisdiction and venue. Venue refers to the place of the trial. Normally the venue or place of the trial is in the county or district where the offence is committed. Consequently, jurisdiction resides in the appropriate court in that location, the site of the alleged crime. Venue, however, can be changed by an order of the court upon application of the accused. Also, there are some circumstances where more than one jurisdiction will have concurrent jurisdiction to try an offence. Venue is procedural, not jurisdictional in nature.
Continue reading “Jurisdiction vs. Venue”

Generally, if procedural irregularities occur related to adjournments or remands, jurisdiction to proceed against the offender or the offence is not lost. Subsection 485(1) of the Code provides that jurisdiction over an offence is not lost when the court fails to exercise jurisdiction at any particular time, or when it fails to comply with any of the provisions in the Code with respect to adjournments or remands. Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as subsection 515(2.2), paragraph 537(1)(j), (j.1) or (k), subsections 650(1.1) or (1.2), subsections 650(2)(b) or 650.01(3)(a), subsections 683(2.1) or 688(2.1) or a rule of court made under sections 482 or 482.1 applies.
Continue reading “Procedural Irregularities”

Our Judges exercise province wide jurisdiction. It is quite common for a Judge who normally presides in Essex County to travel to another county such as Chatham-Kent to conduct a trial there. Our Judges are mobile. In recent years, these county jurisdictions have been made “regional”. Several county jurisdictions now make up a region. A senior administrative Judge, appointed for that purpose in a designated region assigns the Judges in her region to hear cases within the region.

Continue reading “Jurisdiction of Judges”

The territorial jurisdiction of a summary conviction court is generally considered to be restricted to the territorial division where the subject matter of the proceedings arose. Pursuant to the Interpretation Act3 jurisdiction of a Judge or Justice must extend to the place where the thing is to be done.4 Section 798 of the Code provides that the summary conviction procedures apply “in the territorial division over which the person who constitutes that court has jurisdiction”. Consequently, a summary conviction court has province-wide jurisdiction if the Judge constituting the court has that jurisdiction. The court with jurisdiction is entitled to order a stay of proceedings or order a transfer of the trial site for an abuse of process if an accused is scheduled to be tried in a judicial region other than where the offence is alleged to have been committed. The accused would generally have to demonstrate hardship either to himself or his witnesses or both in order to demonstrate the abuse.
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Subject to some exceptions, only a court of competent jurisdiction in a Province where the offence is alleged to have been committed, presides over criminal offences. Although subsection 478(1) provides that a court in a Province shall not try an offence committed entirely in another Province, by subsection (3) an accused person may plead guilty before a court in a different Province and be sentenced in that location provided the Attorney General of the Province having jurisdiction consents and provided the offence is not one listed in section 469 of the Code.

Continue reading “Territorial Jurisdictions”

Jurisdiction

In the criminal Justice system, jurisdiction is the legal power by which a court is authorized to preside over the hearing of a particular offence and accused. A Superior Court of a Province or Territory has original and plenary jurisdiction in all criminal matters unless its jurisdiction is expressly prohibited by statute. Additionally, a Superior Court has an inherent supervisory role to remedy procedural unfairness. All appellate courts, by their very nature, have jurisdiction only to hear appeals where that jurisdiction is expressly conferred upon the appellate court by statute.

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