R. v. J.K., 2026 ONSC 1340
[10] Section 478(1) of the Criminal Code provides: “Subject to this Act, a court in a province shall not try an offence committed entirely in another province.”
[11] Although the location of the sexual acts alleged is not an essential element of the offences, the location of the alleged offences of sexual assault are relevant to the territorial jurisdiction of the court: R. c. G.L., 2023 ONCA 750, 433 C.C.C. (3d) 404, at para. 28.
[12] In R. v. Bigelow (1982), 1982 CanLII 2046 (ON CA), 37 O.R. (2d) 304, the Court of Appeal interpreted the predecessor to s. 476(b), which provided, among other things, special jurisdiction for offences commenced within one territorial division and completed within another. In that case, the accused had unlawfully removed his son to Alberta when the child was ordinarily resident in Ontario with his mother.
[13] The Court of Appeal held that Ontario courts have no jurisdiction if an offence were wholly committed in another province. But Ontario courts have territorial jurisdiction if any element were committed in Ontario. This analysis must be approached flexibly and includes three categories: (1) a continuity of operation extending from Ontario to the other province; (2) the commission of an overt act in Ontario; and (3) the registration of effects in Ontario from acts committed in other provinces.
[14] The Supreme Court of Canada later considered the issue of territorial jurisdiction in the context of transnational offences in Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178. In that context, the Supreme Court held that the relevant inquiry is to determine whether there is a “real and substantial link” between the offence and Canada. To establish jurisdiction in Canada, “all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada”: at pp. 212-13. As the Quebec Court of Appeal explained, “the same principle applies where any significant portion of the alleged activities took place in two or more territorial divisions within Canada”: Ibeagha, at para. 13.
[15] In G.L., the Court of Appeal for Ontario held that the test adopted in Bigelow is harmonious with the real and substantial connection test: at para. 30. The Quebec Court of Appeal reached a similar conclusion in Ibeagha, at para. 13, as did the British Columbia Court of Appeal in R. v. Hammerbeck, 1993 CanLII 613 (BC CA), 26 B.C.A.C. 1, at para. 22, (“[t]he test in Libman encompasses the test in Bigelow”).
[16] A single charge of sexual assault can refer to numerous acts that are all part of the same transaction: R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at paras. 20-21; R. v. L.F.P., 2017 ONCA 132, at para. 3. An Ontario court will have jurisdiction over the count where the charge constitutes a single ongoing transaction, some of which occurred in Ontario: L.F.P., at para. 5. See also Bigelow; R. v. L. (D.A.) (1996), 1996 CanLII 8371 (BC CA), 107 C.C.C. (3d) 178 (B.C. C.A.), at para. 19; and R. v. F.R.H., 2013 ONSC 2238, at para. 25.
[17] For instance, in L.F.P., the count as amended was not tied to any specific sexual act. As amended, the count in that case referred to a continuing sexual assault over a three-year time period in both Ontario and Quebec. It was therefore within the territorial jurisdiction of the Ontario courts.
[18] An Ontario court will also have jurisdiction over the count where the location in which the offence occurred is uncertain, but there is a real and substantial connection to Ontario. In G.L., the accused committed two sexual acts against the complainant E.J. the same night. The evidence was that the sexual acts occurred in Ontario or Quebec. Given the assaults occurred more than 30 years earlier, the complainant could not recall whether the accused took him camping as a child in Ontario or Quebec. At the conclusion of the evidence, the indictment was amended to conform with the evidence to specify that the offence occurred in Pembroke and in the province of Quebec.
[19] The Court of Appeal held in G.L. that there was a real and substantial link between the offence and Ontario. It held that there was a continuity of operation between Ontario and Quebec. The accused and complainant were both resident in Ontario, the relationship had developed in Ontario, and the accused brought the complainant from Ontario to Quebec. The complainant was under his care and control from Ontario while in Quebec. Further, the complainant suffered the effects of the offence in Ontario.
[20] The Court of Appeal went on to hold that where the location of the sexual acts is uncertain but there is a real and substantial connection between the offence and Ontario, it is appropriate for the court to conclude that it has territorial jurisdiction. Otherwise, there would be a risk that the accused could not be prosecuted in either province and this would be an unacceptable result.
[35] Finally, the Crown argues that I should look at the entire indictment in considering the Court’s territorial jurisdiction over Counts 1 and 3. The Crown argues that what is presented is a continuing sexual assault over the course of the accused and complainant’s relationship in several provinces.
[36] I do not accept this submission. The focus of the territorial jurisdiction analysis is properly on the offence alleged under each count and whether the offence under the count has a real and substantial connection to Ontario. In none of the authorities before me did the courts engage in a cross-count analysis of jurisdiction.
[37] While I understand that a “single charge of sexual assault can refer to numerous acts which are all part of the same transaction” (L.F.P., at para. 3, citing Sandhu at p. 262), the indictment as a whole cannot properly be characterized as referring to numerous acts which are all part of the same transaction. Under Count 1, the Crown narrowed its position to a single incident in Edmonton, Alberta in 2014. There is then a two-year gap between Count 1 and Count 2. Count 2 covers a four-year period (2017-21) in Ottawa, Ontario, but this too was narrowed to a single incident. Count 3 relates to a specific instance of sexual assault in Montreal, Quebec in 2018. Similarly, Count 4 relates to a specific instance of sexual assault in Kingston, Ontario on November 11, 2022.
[38] I acknowledge that there are good practical and policy reasons why it would be preferable for a single prosecution to take place in Ontario where the complainant reported the offences to the police and where she and the accused now reside. For example, it would avoid the need for trials in separate provinces.
[39] But there are countervailing constitutional considerations given that Canada is “federal state […] where the Constitution gives jurisdiction over the administration of criminal law to the provinces”: Bigelow, at p. 307. In my view, the practical and policy considerations raised by the Crown are best left to Parliament to address, as it did in permitting an accused to enter a plea in a province other than the province where the offence was committed, with the consent of the Attorney General of the jurisdiction in which the offence occurred: Criminal Code, s. 478(3).
[40] Ultimately, without a real and substantial connection between the offences in Count 1 and 3 and Ontario, this court does not have jurisdiction over them.
[41] In closing, I observe that the way the territorial jurisdiction issue was raised was far from ideal. The defence should have raised this issue as a pretrial motion, rather than raising it on the morning the trial was scheduled to begin. For its part, the Crown should have anticipated this issue and brought a motion for directions. The Crown should also have brought a Seaboyer application in advance of trial, as the complainant’s evidence almost immediately touched on other sexual activity evidence given the circumstances of the alleged offences: R. v. Kinamore, 2025 SCC 19. As the Supreme Court reminded us in R. v. Jordan, the Crown and defence “should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance”: 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 138.
[35] Finally, the Crown argues that I should look at the entire indictment in considering the Court’s territorial jurisdiction over Counts 1 and 3. The Crown argues that what is presented is a continuing sexual assault over the course of the accused and complainant’s relationship in several provinces.
[36] I do not accept this submission. The focus of the territorial jurisdiction analysis is properly on the offence alleged under each count and whether the offence under the count has a real and substantial connection to Ontario. In none of the authorities before me did the courts engage in a cross-count analysis of jurisdiction.
[37] While I understand that a “single charge of sexual assault can refer to numerous acts which are all part of the same transaction” (L.F.P., at para. 3, citing Sandhu at p. 262), the indictment as a whole cannot properly be characterized as referring to numerous acts which are all part of the same transaction. Under Count 1, the Crown narrowed its position to a single incident in Edmonton, Alberta in 2014. There is then a two-year gap between Count 1 and Count 2. Count 2 covers a four-year period (2017-21) in Ottawa, Ontario, but this too was narrowed to a single incident. Count 3 relates to a specific instance of sexual assault in Montreal, Quebec in 2018. Similarly, Count 4 relates to a specific instance of sexual assault in Kingston, Ontario on November 11, 2022.
[38] I acknowledge that there are good practical and policy reasons why it would be preferable for a single prosecution to take place in Ontario where the complainant reported the offences to the police and where she and the accused now reside. For example, it would avoid the need for trials in separate provinces.
[39] But there are countervailing constitutional considerations given that Canada is “federal state […] where the Constitution gives jurisdiction over the administration of criminal law to the provinces”: Bigelow, at p. 307. In my view, the practical and policy considerations raised by the Crown are best left to Parliament to address, as it did in permitting an accused to enter a plea in a province other than the province where the offence was committed, with the consent of the Attorney General of the jurisdiction in which the offence occurred: Criminal Code, s. 478(3).
[40] Ultimately, without a real and substantial connection between the offences in Count 1 and 3 and Ontario, this court does not have jurisdiction over them.
[41] In closing, I observe that the way the territorial jurisdiction issue was raised was far from ideal. The defence should have raised this issue as a pretrial motion, rather than raising it on the morning the trial was scheduled to begin. For its part, the Crown should have anticipated this issue and brought a motion for directions. The Crown should also have brought a Seaboyer application in advance of trial, as the complainant’s evidence almost immediately touched on other sexual activity evidence given the circumstances of the alleged offences: R. v. Kinamore, 2025 SCC 19. As the Supreme Court reminded us in R. v. Jordan, the Crown and defence “should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance”: 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 138.
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