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.
A Judge becomes “seized” of a case when a plea has been entered and evidence has been called. A Judge also becomes “seized” of a case if that Judge receives a guilty plea from an accused. Once a Judge becomes seized, and is for any reason unable to continue, the proceedings may be continued before another Judge who has jurisdiction to try the accused pursuant to section 669.2 of the Code. Judges who are seized of the case remain on the case until its conclusion.
If a Judge receives a plea of not guilty, but no evidence is heard, then another Judge has jurisdiction to hear the proceedings if the original Judge is unavailable.1 This power often extends to the selection of a jury. Occasionally, one Judge will preside over the selection of a jury or even several juries, although it is intended that another Judge or several other Judges will then preside over the actual trial(s).
Even when a verdict has been rendered, another Judge may sentence the accused where guilt is found if the original Judge presiding at the time of the verdict is unable to continue. If no verdict is rendered, another Judge may re-commence the trial. Of course, a trial Judge has jurisdiction to declare a mistrial in compelling circumstances when inadmissible evidence and/or extremely prejudicial evidence is improperly disclosed. Once a new trial is ordered it may be conducted by another Judge.
The non-exhaustive list of reasons why a Judge would be “unable to continue” has been held to include illness, absence and appointment to a higher court. A successor Judge has jurisdiction to take over a pre-trial application for a stay under the Charter after the trial Judge’s recusal from a motion on the grounds of bias. If a trial Judge recuses herself during a pre-trial application to stay proceedings, another Judge of the same court is able to hear the application. The authority of an alternate Judge to hear and decide the application may be based on the authority of a superior court Judge to hear any application for a remedy under subsection 24(1) of the Charter; or the authority of subsection 669.2(1) of the Code, permitting transfer of jurisdiction from one trial Judge to another Judge of the same court where the trial Judge is unable to continue to preside for any reason.
Every Judge has the same power and authority to preserve order in a court over which she presides as may be exercised by the superior court of criminal jurisdiction of the province. Every court has the power to commit for contempt in the face of that court. The power to cite for contempt, however, is to be used for the preservation of order in the courtroom and is not to be used for other reasons or to be invoked well after the proceedings in question have ended.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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