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Canadian Criminal Procedure and Practice/Jurisdiction

< Canadian Criminal Procedure and Practice

General Principles

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"Jurisdiction" refers to the legal authority or power of the court over the subject matter, time and location, the persons connected to the proceeding. [1]

Jurisdiction is intimately tied with the state based on a geographic region or territory. This is known as the "principle of territoriality". From this two forms of jurisdiction arise. The was discussed in R v Hape 2007 SCC 26 at 59:

...The principle of territoriality extends to two related bases for jurisdiction, the objective territorial principle and the subjective territorial principle. According to the objective territorial principle, a state may claim jurisdiction over a criminal act that commences or occurs outside the state if it is completed, or if a constituent element takes place, within the state, thus connecting the event to the territory of the state through a sufficiently strong link: Brownlie, at p. 299. See also Libman, at pp. 212-13. Subjective territoriality refers to the exercise of jurisdiction over an act that occurs or has begun within a state’s territory even though it has consequences in another state.

This requirement is further modified by the principle of comity which says that where two or more states “have legal claim to a jurisdiction” then a state should only claim jurisidciton where ther is a “real and substantial” connection with the event.

The matter of jurisdiction can be broken down into several components:

  1. jurisdiction over persons
  2. jurisdiction over subject matters
  3. jurisdiction over period of time

Behind this division, is a court which itself has imposed limitations.


  1. ↑ Reference re Judicature Act (1988), 46 CCC 203 NBCA at p. 218; R. v. Gray (1991), 68 CCC 193 (Ont.)

Jurisdiction of Courts

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Superior Court

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


  1. ↑ MacMillan Bloedel v. Simpson Ltd, [1995] SCR 725
  2. ↑ See McMillan Bloedel v Simpson Ltd. [1995] 4 SCR 725
  3. ↑ R. v. Rose, [1998] 3 SCR 262; R. v. Pilarinos (2001) 158 CCC 1 (BCSC)

Provincial and Appellate Court

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A Provincial or Territorial Court has jurisdiction derived by statute alone.[1] This authory generally allows judges sitting in any part of the province. However, the limit does not cover offences that have no real and substantial connection with the jurisdiction of the provincial court judge.[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]

An appellate court only has jurisdiction that is provided to it by statute and so can only hear appeals permitted under statute.[4]


  1. ↑ R. v. Doyle, [1977] 1 SCR 597; R. v. SJL (2002), 163 CCC (3d) 560 (BCCA)
  2. ↑ R v Doyle [1977] 1 SCR 597<br R v JLS 2002 163 CCC (3d) 560 (BCCA) at 23
  3. ↑ eg. see R v Price 2010 NBCA
  4. ↑ R. v. Kevork (1985), 21 CCC (3d) 369

Jurisdiction over persons

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Adults

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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]

Designations of counsel
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). [5] 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.[6] As such the Court will not lose jurisdiction over the accused due to his or her absence.[7] 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.[8]


  1. ↑ s.470(a); R. v. Gordon (1980), 55 CCC (2d) 197 (BCCA)
  2. ↑ R. v. Vezina; Cote [1986] 1 SCR 2
  3. ↑ s. 800(2) and 802.1
  4. ↑ s. 803(2)(a)
  5. ↑ R. v. Golyanik (2003), 173 CCC 307 (SCJ); R. v. C(JJ) (2003), 12 AtlaLR 191; R. v. L(GY) 2009 84 WCB 341 (SCJ)
  6. ↑ s. 650.01(3)(a)
  7. ↑ 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
  8. ↑ s. 650.01(2)
    R. v. Butler, 2010 NSSC 284 - rejected designation for no listed charges

Specific Persons

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


  1. ↑ see s. 17 of Interpretation Act

Youths

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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]


  1. ↑ see s.13 of the Criminal Code
  2. ↑ see s. 16 YCJA nad R v McDonald 1985 ONCA 21 CCC 330

Jurisdiction over subject matter

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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]


  1. ↑ R v Manitopyes, 2012 SKQB 141 at 69

Time limitations

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