R. v. Webber, 2021 NSCA 35
[69] There is a broad basis for claiming jurisdiction over continuing and/or inter-provincial offences under s. 476 of the Code. The Ontario Court of Appeal in R. v. Bigelow, (1982) 1982 CanLII 2046 (ON CA), 37 O.R. (2d) 304, succinctly set out the test for claiming territorial jurisdiction under s. 476:
11. …The test in reality has become whether any element of the offence has occurred in the province claiming jurisdiction…
[70] When an indictment or an information charges an offence within the geographic boundaries of a court’s home province or territory, territorial jurisdiction is claimed.
[71] The problem with the trial judge’s reasoning in the present case is that the Indictment never claimed jurisdiction on behalf of Nova Scotia.
[72] When an indictment or an information charges an offence outside the provincial or territorial boundaries of the court, there is no territorial jurisdiction to preside over the case. As McQuaid J. (as he then was) explained in R. v. Davis, [1979] 23 Nfld. & P.E.I.R. 422:
[4] Strangely, counsel for the appellant made no reference to the fact that on the face of the information the provincial court judge in Prince Edward Island would have no jurisdiction over an offence purported to have been committed at Middleton in the said Province (of New Brunswick). Without amendment, which could have been made at any time prior to conviction, but of which amendment there is no record, the judge was clearly without jurisdiction. [Emphasis added]
[73] This literal approach to territorial jurisdiction makes sense. It provides trial judges with a quick, clear and effective method of determining the situs of the offence and whether the prosecution is being pursued in the appropriate judicial forum.
[74] The courts of one provincial jurisdiction cannot try offences alleged to have taken place exclusively within a different provincial jurisdiction.
[75] Before the trial judge, the Crown argued that Nova Scotia had jurisdiction, citing as authority R. v. Bigelow; R. v. Masoudi, 2016 ONCJ 476; R. v. Patrois, 2016 ONSC 4695; R. v. Hammerbeck, [1993] B.C.J. No. 685 (CA); and R. v. Doer, [1999] M.J. No. 40 (QB). On this appeal, it relies on R. v. Ibeagha, 2019 QCCA 1534, to support its argument that Nova Scotia has territorial jurisdiction.
[76] There is a critical distinction between those decisions and this case. Unlike the present case, the informations or indictments underlying those cases specifically claimed that the offence was committed, at least in part, within the trial court’s territorial jurisdiction.
[77] Bigelow (Ontario) charged an offence in Ontario “at the City of London in the County of Middlesex”. In Masoudi (Ontario), the charges alleged offences "at the City of Toronto in the Toronto Region and elsewhere in Canada". In Patrois (Ontario), the offence was alleged to have taken place “in the province of Ontario and the province of Québec”. In Hammerbeck (British Columbia), the indictment charged an offence “at the District of Surrey, in the County of Westminster, Province of British Columbia.” In Doer (Manitoba), the informations alleged the unlawful sale of cigarettes “at or near the Town of St. Adolphe, in the Province of Manitoba.” In Ibeagha (Quebec), the Indictment alleged that the offences were committed “in Montreal and elsewhere in Canada.”
[78] All of the indictments in those cases were being tried in the province or a province (if more than one) where the offences were alleged to have occurred.
[79] The Crown also refers to the case of R. v. Merrett, 2017 ABPC 56 in its factum. Merrett involved a situation where the Crown had not called evidence on where the offence occurred. The Indictment alleged that it occurred in the province of Alberta. Despite the factual differences, the discussion of jurisdiction in the case is instructive, as it makes clear that it will be apparent on the face of the indictment where the offence is alleged to have been committed:
27 Generally, there are three occasions when the Provincial Court will address the issue of territorial jurisdiction:
(1)Initially, when the sworn Information is examined, it will be apparent on its face whether it is alleged therein that an offence was committed in the territorial jurisdiction of the Court. If it is alleged that the offence was committed outside the territorial jurisdiction of the Court, and assuming none of the exceptions set out in sections such as 7, 470, and 476, apply, then the Court will have no jurisdiction to "try, determine and adjudge" the proceedings… [emphasis added]
[80] As in Merrett, none of the exceptions apply in this case. The Crown, in its factum, suggests that the Indictment in this case is defective on its face:
27. The wording of the sexual exploitation charge did allege the offence occurred in New Brunswick. It is clear the trial was being held in Nova Scotia. As a result, the charge was defective on its face.
[81] With respect, the Indictment is not defective on its face. On its face it alleged the offence occurred within the territorial jurisdiction of New Brunswick. It does not allege nor can it be interpreted in such a manner as to confer territorial jurisdiction upon Nova Scotia. If an indictment alleges an offence occurred outside the territorial jurisdiction of the court, and none of the exceptions in the Criminal Code apply, the court has no jurisdiction to adjudicate the proceedings.
[82] Neither party has referred to a reported case where a court has assumed territorial jurisdiction over a Criminal Code offence which was alleged, by way of the wording of the indictment, to have occurred exclusively in a different province.
[83] In order for the Supreme Court of Nova Scotia to have gained jurisdiction in the present case, the Indictment would have had to have alleged that the s. 153(1)(a) offence occurred in New Brunswick and Nova Scotia.
[84] The Crown argues that to accede to this ground of appeal would be to prefer form over substance. With respect, I disagree. The wording of the indictment is a matter of substance on a question of jurisdiction. The Courts of Nova Scotia do not have jurisdiction to try an indictment charging an offence alleged to have occurred only in New Brunswick. The trial judge’s failure to stay the charge was an error of law.
[85] Ms. Webber argues the failure to stay the charge had a ripple effect on the whole trial proceeding, which requires a new trial. It is not necessary to address this aspect of the argument as I am of the view a new trial should be ordered for other reasons.
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