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.
Although subsection 485(1) suggests jurisdiction is not lost, one may wonder why subsection 485(2) beginning with the words ‘where jurisdiction over an accused or defendant is lost’ is necessary. Subsection (2) permits the court to issue a summons, or, if necessary in the public interest, a warrant for the arrest of an accused within three months after jurisdiction over that person has been lost and has not been regained. And, subsection (3) provides that if no summons or warrant is issued within a three month period, the proceedings shall be deemed dismissed for want of prosecution.
Proceedings cannot be re-instituted except in accordance with section 485.1. Consequently, to re-institute charges where jurisdiction has been lost requires the personal consent in writing of the Attorney General or Deputy Attorney General of the province or a written order of the court.
Jurisdiction over the offence is preserved by section 485 if an adjournment is greater than eight days and made without the consent of the accused.2 Section 483 also preserves jurisdiction where the case is not called when scheduled. It seems that the validity of subsection 485(2) may be that section 485 cannot cure the loss of jurisdiction if the information is lost but subsequently found or where courtrooms are switched without notice to the accused.3
Subsection 485(1.1) provides that jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, in circumstances where the accused has been permitted to be absent and to appear by designated counsel4 or to appear by a telecommunication facility.
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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