R v Hadikin, 2026 ABCJ 59
Territorial Jurisdiction
[30] As discussed in Merret, jurisdiction has at least three aspects, jurisdiction over the offence, jurisdiction over the person, and territorial jurisdiction.
[31] Jurisdiction over the offence relates to what offences can be heard by the court. For example, a provincial court can not hear offences listed in section 469.
[32] Jurisdiction over the person concerns whether a court may hear a matter involving that person. For example, a court has no jurisdiction to deal with a criminal act of a person under twelve or someone who enjoys diplomatic immunity.
[33] Territorial jurisdiction concerns whether the alleged offence was committed within the territorial jurisdiction of the court. It is the issue of territorial jurisdiction that has been raised by the Accused in this case.
Section 478(1)
[34] Section 478(1) provides that a court in a province shall not try an offence committed entirely in another province. Section 476(b) provides that jurisdiction may be in more than one province if the offence is committed in one territorial division and completed in another. In such case, either province has jurisdiction.
[35] In short, a court in one province does not have territorial jurisdiction if the offence is committed entirely in another province.
Jurisdiction as an Element of the Offence
[36] The Defence cites Montelone for authority that the Crown must prove jurisdiction beyond a reasonable doubt as an essential element of the offence.
[37] Montelone addresses the test to be applied by a trial judge when a motion is made by the Defence for a directed verdict of acquittal after the Crown has closed its case. No where in Montelone does the Supreme Court state that jurisdiction is an essential element of an offence that must be proved beyond a reasonable doubt.
[38] To the contrary, the preponderance of the authority is that jurisdiction is not an element of the offence.
[39] R. v. G.L., 2003 CanLII 57437 (ON CA), 2003CanLII 57437 (ON CA) (“G.L.”), involved a charge of historical sexual assaults where the accused and the complainant resided in Ontario, but the accused wasn’t sure if the sexual assault occurred while they were camping in Ontario or Quebec. The accused argued the Ontario trial court did not have jurisdiction to hear the matter as the sexual assault may have occurred in Quebec. In addressing whether the location of the offence was an essential element of the offence the court said:
In particular, the location where the sexual acts occurred is not an essential element of the offence. Rather, the situs of the offence is relevant to territorial jurisdiction of the Court. The essential elements of the infraction should be proved beyond a reasonable doubt, which occurred in this case. However, the situs of the offence is a question of law to decide pursuant to prove jurisdictional facts: Balcombe v The Queen, 1954 CanLII 75 (SCC), [1954] S.C.R. 303; R v Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701 as p. 746… (para. 28)
[40] A similar finding was made by Justice Fradsham in Merret:
“…the place where the offence was allegedly committed is not an element of the of the offence itself, and is, at most, a matter of the jurisdiction of the court to try the matter” (paras.24- 33) (see also R v Beckow, 2024 ABCJ 235, paras.8-11)
[41] Finally on this point, the Quebec Court of Appeal in Ibeagha addressed territorial jurisdiction over offences related to sex trafficking in Quebec and Alberta. The Court found jurisdiction is a condition precedent to whether the court has authority to try the matter and is not an element of the offence:
Whether a court has jurisdiction is a condition precedent to a trial of the merits and this is as true of territorial jurisdiction as it is of temporal jurisdiction, jurisdiction over the person or jurisdiction over the subject-matter of an offence. It is a preliminary matter that affects the authority of a court to proceed at trial and ideally should be resolved before the presentation of evidence on the general issue. This does not mean that the issue cannot be raised later in a trial, but the question of jurisdiction and the general issue are conceptually distinct. In the present case the question of territorial jurisdiction was only raised by the judge in the final pleadings of the prosecution and in a manner that suggested that territorial jurisdiction was an element of the offence rather than a condition precedent to proceeding on the merits at trial. (para. 18)
[42] In short, whether the court has jurisdiction to try a matter is not an element of the offence but rather is a question of law to be decided pursuant to “proved jurisdictional facts”.
“Test” for Determining Whether a Court has Territorial Jurisdiction
[43] The leading authorities on territorial jurisdiction appear to be Libman v The Queen, 1985 CanLII 51 (SCC) (“Libman”) and R v Bigelow, 1982 CanLII 2046 (ON CA) (“Bigelow”).
[44] Libman involved a fraudulent scheme to sell shares in mining companies in Central America to purchasers in the United States. The solicitation for the sale of shares was conducted out of a phone centre in Toronto, Ontario. The accused argued exclusive jurisdiction belonged to the country where the gravamen of the offence took place or where the offence was completed. The court in finding that Canada had jurisdiction held:
“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. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country…” (para. 74)
[45] The fact the phone centre where the fraudulent sales were solicited was located in Toronto was a sufficient link to ground territorial jurisdiction to Canada.
[46] As noted above, G.L. involved the prosecution of an uncle who was alleged to have sexually assaulted three of his nephews about 30 years earlier. At the time of the offences, the accused and the complainants lived in Ontario. One of the nephews testified he was sexually assaulted in a tent while on a camping trip in either Ontario or Quebec, he wasn’t certain. The trial judge allowed the information to be amended to provide that the offence occurred in Ontario and Quebec.
[47] After conviction, the accused advanced several grounds of appeal including that the trial judge was wrong to find the Ontario court had jurisdiction to try a sexual assault that may have occurred in Quebec.
[48] Drawing from Bigelow and Libman, the ONCA adopted the “real and substantial link” as the appropriate test of whether a court has territorial jurisdiction over the charge.
[49] Starting at paragraph 29, the Court found:
In R. v. Bigelow (1982), 1982 CanLII 2046 (ON CA), 37 O.R. (2nd) 304 (C.A.), leave to appeal denied, [1982] S.C.C.A. No. 105, this Court interpreted section 432(b) of the Criminal Code, which has since been slightly amended, and is now section 476(b) of the Code. The Court stated that the test for application of section 432(b) is to determine whether "elements" of the offence were committed in the province asserting territorial jurisdiction: Bigelow, at p. 307. On the other hand, it is clear that the Court did not mean to say that an essential element of the offence was committed in the province in question, but rather that the word "element" was used in the broadest sense, i.e. the view that there should be a real and substantial link between the offence and the province where prosecution takes place. The Court recognized three circumstances where the Ontario Court has territorial jurisdiction over the prosecution of an offence which was committed in another province, i.e. when there is (1) a continuity of operations extending from the province in question (Ontario) to the other province (2) the commission of an overt act in Ontario, or (3) the registration of effects of the Ontario offence: Bigelow, at p. 304. In particular, the Court added that the three circumstances were solely examples of categories of causes where it would be appropriate for the Court to conclude that it had territorial jurisdiction over an offence involving more than one province: Bigelow, at p. 311. The Court also underlined the importance of taking a flexible and sensible approach and to avoid an approach that is too narrow and technical:
Fundamentally, it will be recognized that these three categories of cases merely provide examples of how courts have determined whether an element of an offence has been committed in a province claiming jurisdiction over it. They, nevertheless, demonstrate the determination of the courts to construe s. 432(b) flexibly and sensibly and to avoid restricting its operation by interpreting it narrowly or technically. They simplify the inquiry in this case into the essential legal characteristics of the offence and the acts or omissions which constitute it. [My underlining.]
30. It is noteworthy that Bigelow was decided prior to the decision of the Supreme Court of Canada in Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, where the Court ruled on the issue of territorial jurisdiction within the context of transnational offences. Within this context, the Supreme Court of Canada ruled that the relevant question is to determine whether there is a "real and substantial link" between the offence and the prosecuting country. Although this Court did not explicitly use these terms in Bigelow in my view the test adopted by this Court in Bigelow within the context of the inter-provincial offences is harmonious with the concept of the "real and substantial" link. Furthermore, within the inter-provincial context, the preoccupation with courtesy between sovereign countries is greatly mitigated, which explain my use of the concept of “real and substantial” above.
[50] While the Court in G.L. acknowledged that the situs of the acts was uncertain, there was a real and substantial link between the charge and the province of Ontario, which was sufficient to give the Ontario court jurisdiction to try the charge even if the sexual assault occurred in Quebec. There was “a continuity of operations between Ontario and Quebec in the commission of the offence,” The accused and complainant were both Ontario residents, the relationship between the two developed in Ontario, it was possible that the accused brought the complainant from Ontario to go camping in Quebec, and the complainant suffered the effects of the offence in Ontario.
[51] Ibeagha involved charges related to living off the avails of prostitution and sex trafficking. The complainants were sisters. One of the sisters was involved in prostitution in Montreal, and one of the two accused was described as her pimp. Pictures were taken of the complainants in Montreal, and one of the complainants was provided with a false drivers permit while in Montreal. One of the complainants was told that things would go badly if she didn’t agree to work as an escort. The complainants flew to Alberta, and while in Alberta they provided sexual services that were advertised on the internet using the photographs taken when they were in Montreal. For a couple of weeks, before the two accused joined the complainants in Alberta, some of the proceeds from the escort services were sent to the accused while they were still in Montreal.
[52] The trial judge acquitted the two accused on the basis that the offences were committed entirely in Alberta, and the Quebec court did not have jurisdiction. On appeal, the Quebec Court of Appeal cited Bigelow that “the principle that constrains jurisdiction to more than one territorial division is that there must be a “real and substantial” link between the jurisdiction of the trial and the alleged offence” (para. 13). At para 14, the Court stated:
In Bigelow the court began with the general proposition that the test for finding jurisdiction in more than one territorial division is whether any element of the offence has occurred in the province claiming jurisdiction. It will be noted, however, that the factors enumerated in Bigelow do not refer expressly to an element of the offence as defined in the substantive law. They are not restricted to an element of the actus reus or the mens rea of an offence. They each refer to matters of fact that could be relevant to the proof of an essential element at trial. They include factual elements that form part of the factual narrative of the transaction in issue. If that threshold can be met, the court of more than one territorial division (or province) can assert jurisdiction, and the outcome will follow the strength of the evidence.
[53] The Quebec Court of Appeal found the Quebec court had jurisdiction because the scheme continued from Montreal to Alberta and back and there were overt acts in Quebec in furtherance of the criminal conduct in Alberta.
[54] Of significance in Ibeagha is that the Quebec Court of Appeal found it was not necessary that an element of the actus reus or mens rea occur in the province for the province to find jurisdiction.
[55] Some principles that can be derived from the foregoing cases are:
(i) Whether a court has jurisdiction to try a matter is not an element of the offence but is a question of law to be decided pursuant to proved jurisdictional facts.
(ii) A court has territorial jurisdiction if the offence has a real and substantial link to the jurisdiction.
(iii) Courts have recognized three circumstances where a court has jurisdiction over an offence committed in another province:
(a) where there is a continuity of operations from one province to the other;
(b) where there is a commission of an overt act in the province claiming jurisdiction; and
(c) where the effects of the offence are registered in the province.
These factors are not exclusive and are only examples of circumstances where a court may have jurisdiction.
(iv) An element of the actus reus or mens rea does not have to occur in the province for the province to have jurisdiction.
(v) In determining whether there is a real and substantial link to the jurisdiction, the court is to take a flexible and sensible approach and to avoid an approach that is too narrow and technical.
[56] With reference to these principles, the issue to be decided is whether the Crown has adduced sufficient evidence to establish a real and substantial link between Alberta and the alleged non-consensual publication of the Image
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