Month: September 2024

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.
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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.

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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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The objective of the legislation is far different than the aim of the Supreme Court of Canada’s decision in Bedford. This legislation unabashedly seeks to eliminate all forms of prostitution, by criminalizing every aspect of the world’s oldest profession. It operates from the naïve and inaccurate premise that the prostitutes are always and everywhere “victims” in an industry that recruits them and uses them against their wishes for financial benefit.
Continue reading “The Protection Of Communities and Exploited Persons Act – Part 2”

The Protection Of Communities and Exploited Persons Act came into force on December 6, 2014.
It amends the Criminal Code, among other things, to:

create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the internet;
modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
create an offence that prohibits communicating – for the purpose of selling sexual services – in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre;
ensure consistency between prostitution offences and the existing human trafficking offences; and
specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be used or intended for use in binding or tying up a person against their will.

The objective of the legislation is far different than the aim of the Supreme Court of Canada’s decision in Bedford. This legislation unabashedly seeks to eliminate all forms of prostitution, by criminalizing every aspect of the world’s oldest profession. It operates from the naïve and inaccurate premise that the prostitutes are always and everywhere “victims” in an industry that recruits them and uses them against their wishes for financial benefit.

It fails to recognize that many prostitutes are not forced into prostitution. Instead, they enter prostitution intentionally and purposefully. The legislation mocks the Supreme Court of Canada’s decision by its paternalistic and inaccurate description of prostitution as a form of sexual exploitation that “disproportionately and negatively impacts on women and girls.” Its title, “Protection of Communities and Exploited Persons Act” reads like a bad script drafted by old white men pontificating of the smarmy life of others that they have been ordered to protect. The protection is delivered by eliminating them. This legislation will last in its present form only as long as it takes to arrive at the Supreme Court of Canada again.

The prostitutes who led the successful challenge in the Supreme Court of Canada only asked to be allowed to ply their trade in safety. It was a modest request. Their safety concerns were found to be legitimate. They did not claim to be exploited. They did not say they were “recruited” or “forced” into the business. Until this legislation is also found to be unconstitutional, they will be required to work in an environment that is much more dangerous than the one they sought to improve.

Prostitutes will not be allowed to work in a business setting, employ receptionists, advertise their services or have security guards. Every other person except “the prostitute” under this legislation will be committing a criminal offence. The prostitutes, according to this legislation, are “objects” purchased by those with money and power. They, according to this legislation, allow men, the primary purchasers of sexual services, to access their bodies, thereby demeaning and degrading the prostitutes. The government means to stop the degradation. The prostitutes, under this legislation, have failed to recognize that they function without any sense of human dignity, and are considered as blight on society. This legislation will be viewed by most as legislative abuse. It mocks the Supreme Court of Canada’s decision in Bedford.

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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In Canada v. Bedford three current or former prostitutes applied for a declaration that sections 210, 212(1) and 213(1) of the Code infringe the right to life, liberty and security of the person pursuant to section 7 of the Charter. The Supreme Court of Canada agreed. The three impugned sections, concerned with preventing public nuisance and exploitation of prostitutes, were unconstitutional as offending section 7 and failed to pass section 1 scrutiny. The court found that these provisions did not merely impose conditions on how prostitutes operate, they in fact, imposed dangerous conditions on prostitutes thereby preventing people (the prostitutes) working in a risky but legal activity, from taking steps to protect themselves from those risks.

Continue reading “Canada’s Prostitution Laws”