Juridiction des tribunaux

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Principes généraux

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

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."

Types of Jurisdiction

The three forms of jurisdiction consist of:

• 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.

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."

From these two principles of jurisdiction arise. There is the "objective territorial principle" of jurisdiction and the "subjective territorial principle" of jurisdiction . 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 the location of the consequences.

Qualified Territoriality

The traditional principle of territoriality has been extended to adapt to transnational and international activities, creating concurrent jurisdiction between nations. 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”. This has also been recognized in cases involving communications between two jurisdictions.

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

Nationality

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

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.

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.

Limits on Provincial Legislation

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

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

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. These must be treated as distinct and separate elements.

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

6
[omis (1)]

Offences outside Canada

(2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 [ordonnance de libération] of an offence committed outside Canada.
[omis (3)]
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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Similarly, s. 467 states:

Offence committed entirely in one province

478 (1) Subject to this Act, a court in a province shall not try an offence committed entirely in another province.
[omis (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 478; R.S., 1985, c. 27 (1st Supp.), ss. 64, 101(E); 1994, c. 44, s. 33(E).
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.

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

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.

Jurisdiction of Courts

In the common law, an accused should stand trial in the "locality" of where the offence occurred. This "locality rule" means that an accused will be tried before the most local court available. This rule is based on the convenience of the witnesses, victims and accused persons and also on the historical tradition of the grand jury and petit jury who affirm charges and try a case as being from the same locale as the offence.

The "locality rule" has no application to summary proceeding offences given the application of s. 785 and 798.

Burden of Proof

The Crown does not need to prove that the court has jurisdiction to try a case. Unless statutorily required, the Crown can presume jurisdiction until such point where an application is made.

Superior Court (Including Inherent Jurisdiction)

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. However, the “core powers” of the superior court cannot be removed by statute without violating s.96 of the Constitution Act 1867.

Inherent jurisdiction has few limitations. It grants courts powers to "among other things, empowers a superior court to regulate its proceedings in a way that secures convenience, expeditiousness and efficiency in the administration of justice."

The purpose behind inherent jurisdiction is to "to uphold, to protect and fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner."

Legislative "silence" cannot be used to limit jurisdiction of superior courts over its own process. However, it should only be applied after taking a purposive interpretation of relevant legislation and determining that there is no specific statutory jurisdiction.

Limitations

This jurisdiction cannot be exercised in contravention of any unambiguous statutory provision.

It is to be exercised "sparingly."

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.

– CCC (CanLII), (Jus.)

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

This power includes limited authority to delegate decision-making powers on an issue to another superior court justice "by invitation." It does not allow a judge seized with a trial matter to delegate the trial process.

Jurisdiction Over Persons

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 (CanLII), (Jus.)

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The purpose of s. 470, enacted in 1985, was to loosen the long-standing "locality rule" that restricted where a trial court be held.

The term "territorial jurisdiction" as found in s. 470 generally refers to offences committed anywhere in the province.

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.

Practical Necessity or Necessary Implication

That authority must be explicitly provided by statute or by necessary implication or "practical necessity." However, the authority must be exercised “according to the rules of reason and justice”

Practical necessity is where it is "necessary to effectively and efficiently carry out [the statute’s] purpose". However, it need not be "absolutely necessary for the court to realize the object of [the] statute."

There must be "so strong a probability of intention" that the contrary intention cannot be supposed.

Implied Powers

Practical necessity includes a provincial court “authority to control the [its own] process”.

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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Geographic Boundaries

Provincial Court judges are limited to only exercise authority "within their territorial jurisdiction."

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.

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. While sitting as a youth justice court, the judge or justice maintains their original powers and jurisdiction.

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.

Adults

The Courts have jurisdiction over an accused by virtue of their presence in court. 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." 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. This would include trial matters by way of an ex parte motion.

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

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). 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. As such the Court will not lose jurisdiction over the accused due to his or her absence. 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.

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.

– CCC (CanLII), (Jus.)

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Special Classes of Persons

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

Youths

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.
[omis (2), (3), (4), (5), (6) and (7)]
2002, c. 1, s. 14; 2015, c. 20, ss. 32, 36, c. 29, s. 14; 2019, c. 13, s. 159. [LSJPA (CanLII), (Jus.)

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

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.

– CCC (CanLII), (Jus.)

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Age at Time of Offence Uncertain

Status of offender uncertain

16 When a person is alleged to have committed an offence during a period that includes the date on which the person attains the age of eighteen years, the youth justice court has jurisdiction in respect of the offence and shall, after putting the person to their election under section 67 (adult sentence) if applicable, and on finding the person guilty of the offence,

(a) if it has been proven that the offence was committed before the person attained the age of eighteen years, impose a sentence under this Act;

(b) if it has been proven that the offence was committed after the person attained the age of eighteen years, impose any sentence that could be imposed under the Criminal Code or any other Act of Parliament on an adult who has been convicted of the same offence; and

(c) if it has not been proven that the offence was committed after the person attained the age of eighteen years, impose a sentence under this Act.

[LSJPA (CanLII), (Jus.)

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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.

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) [preuve d'âge – documents valides], 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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

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. [LSJPA (CanLII), (Jus.)

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{{{3}}}

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.

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.

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.

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

Loss of Jurisdiction Over Person Due to Irregularities

General Powers of Certain Officials

Procedural irregularities

485 (1) Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands.

When accused not present

(1.1) 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) [comparution de l'accusé en personne sauf autorisation contraire], paragraph 537(1)(j) [le détenu comparaît par vidéo avec son consentement], (j.1) [pouvoir de permettre à l'accusé d'être absent pendant l'enquête] or (k) [pouvoir de comparaître par vidéo lorsque les preuves ne sont pas recueillies], subsection 650(1.1) [présence par liaison vidéo au procès — non-prise de preuves] or (1.2) [présence par liaison vidéo au procès — lors de la prise de preuves], paragraph 650(2)(b) [comparution de l'accusé par liaison vidéo] or 650.01(3)(a) [comparution par désignation d'un avocat], subsection 683(2.1) [comparaître par téléprésence] or 688(2.1) [droit de comparaître en appel] or a rule of court made under section 482 [pouvoirs de la cour supérieure et de la cour d'appel pour établir des règles] or 482.1 [pouvoirs de la cour supérieure et de la cour d'appel pour établir des règles de gestion des affaires] applies.

Summons or warrant

(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.

Dismissal for want of prosecution

(3) Where no summons or warrant is issued under subsection (2) [irrégularités de procédure dans une assignation ou un mandat] within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1 [recommencement des accusations rejetées].

Adjournment and order

(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1) [irrégularités de procédure], the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.

Part XVI to apply

(5) The provisions of Part XVI [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2) [irrégularités de procédure dans une assignation ou un mandat].
R.S., 1985, c. C-46, s. 485; R.S., 1985, c. 27 (1st Supp.), s. 67; 1992, c. 1, s. 60(F); 1997, c. 18, s. 40; 2002, c. 13, s. 19.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.

In Canada Outside of Province

Offence not in a province

481 Where an offence is committed in a part of Canada not in a province, proceedings in respect thereof may be commenced and the accused may be charged, tried and punished within any territorial division in any province in the same manner as if that offence had been committed in that territorial division.
R.S., c. C-34, s. 437.

– CCC (CanLII), (Jus.)

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Real and Substantial Link

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.

A real and substantial connection is not "limited to the essential elements of the offence."

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.

A jurisdiction has a "has a legitimate interest in prosecuting persons for activities that take place abroad but have an unlawful consequence here."

The court should look at acts that are "an integral part of the scheme."

It is necessary that a "significant portion of the activities constituting [the] offence" took place within the jurisdiction.

An order issued from a province is enough connection where the breach occurred entirely out of the province.

Offences Between Jurisdictions

Special jurisdictions

476 For the purposes of this Act,

[omis (a)]

(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;

[omis (d)]

(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 (CanLII), (Jus.)

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Section 2 defines "territorial division" as including "any province, county, union of counties, township, city, town, parish or other judicial division or place to which the context applies." This has been interpreted as encompassing the whole territory of a province.

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) [infraction en territoire non organisé], 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.

An inter-provincial offence can be captured by s. 476(b) where "any element of the offence has occurred in the province claiming jurisdiction." However, before a court can consider assuming jurisdiction over an inter-provincial offence, the charge must specifically include the local jurisdiction in the wording. Failure to do so will render the court without jurisdiction.

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.

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.

Offences Occurring on Water

• Special Jurisdiction for Offences Over Water

Offences Occurring in Air or Space

• Special Jurisdiction for Offences Committed on Aircrafts or Spacecrafts

Remedies

• Charter Remedies

See Also

• Transfer of Matters to Other Provinces or Territories
• Definition of Judicial Officers and Offices
• Change of Venue