Compétence territoriale interprovinciale : résumé des principes juridiques et de l'approche flexible des tribunaux

R v Hadikin, 2026 ABCJ 59

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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. (2^nd) 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  

Est-ce qu'un Tribunal québécois possède la juridiction territoriale relativement à des gestes reprochés à l’accusé survenus à l’extérieur du Québec?

R. c. Polynice, 2022 QCCQ 13698

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La question soulevée porte sur la compétence territoriale du Tribunal au regard des faits survenus en dehors du Québec

[208]     Premièrement, il est important de rappeler qu’un juge de la Cour du Québec possède une compétence sur l’ensemble du Québec : Gagné c. R., 1990 CanLII 3109 (QC CA); arts. 2, 82 et 106 de la Loi sur les tribunaux judiciaires^[22].

[209]     Deuxièmement, lorsqu’une infraction criminelle est commise entre deux ou plusieurs circonscriptions territoriales (lire ici provinces[23]), ou encore, si celle-ci est commencée dans l’une de ces circonscriptions et consommée dans une autre, l’art. 476 C.cr. confère une compétence territoriale à l’un ou l’autre des juges canadiens de nomination provinciale.

[210]     Troisièmement, le par. 478(1) C.cr. prévoit qu’un Tribunal d’une province ne peut juger une infraction entièrement commise dans une autre province (sous réserve des autres dispositions du Code criminel).

[211]     Il s’agit ici d’une seule et même « transaction criminelle » débutant à Montréal pour se continuer dans d’autres provinces du pays pour finalement se conclure à Longueuil au moment de l’arrestation de l’accusé. Il y a là un continuum dans le déroulement de l’opération criminelle de l’accusé s’étalant d’une province à une autre^[24]. D’autant qu’ici, les faits survenus dans les autres provinces ont indéniablement eu des effets sur la plaignante, une résidente du Québec au moment de son témoignage : Bigelow^[25].

[212]     Les auteurs Vauclair et Desjardins dans leur Traité général de preuve et de procédure pénales écrivent : « Ainsi, quand les différents éléments d’une infraction sont accomplis dans plus d’une province, les tribunaux de toutes les provinces concernées sont compétents pour juger le prévenu[26]. »

[213]     Plus spécifiquement, en matière de traite de personnes, le législateur canadien confère une juridiction spécifique au juge du pays concernant des faits s’étant même déroulés à l’étranger, donc à l’extérieur du Canada. Dans ce contexte, il serait plutôt incongru qu’un juge de la Cour du Québec ne puisse considérer des événements survenus dans différentes provinces ou territoires canadiens dans une affaire comme celle-ci et qu’il faille tenir autant de procès que de provinces parcourues par les protagonistes impliqués.

[214]     Bref, il suffit qu’il y ait un lien de connexité ou rattachement suffisant avec le Québec pour avoir la juridiction requise sur les faits s’étant déroulés à l’extérieur de la province.

[215]     En l’espèce, la plaignante et l’accusé résident au Québec, l’arrestation de l’accusé survient au Québec, la relation conjugale entre eux prend naissance au Québec et plusieurs événements de violence, incluant la manipulation psychologique de l’accusé à l’endroit de la plaignante surviennent au Québec. De plus, les effets des infractions perpétrées par l’accusé (séquelles, craintes, pertes monétaires, retraits au compte TD de la plaignante) continuent de se faire sentir au Québec.

[216]     Or, à la lecture des arrêts, Gélinas^[27] et Ibeagha^[28], rendus par la Cour d’appel du Québec, le Tribunal conclut qu’il possède la juridiction requise à l’égard de l’accusé (juridiction sur la personne) concernant non seulement les faits survenus au Québec, mais également ceux s’étant déroulés en Ontario, au Manitoba et en Alberta (juridiction territoriale).

[217]     Dans Ibeagha, précité, un banc unanime de la Cour d’appel du Québec accueille l’appel de la poursuite à l’encontre de verdicts d’acquittements pour des crimes de proxénétisme et traite de personnes et ordonne la tenue d’un nouveau procès, puisqu’une partie des faits s’y rattachant s’étaient déroulés à Montréal, en dépit du fait que les services sexuels avaient eu lieu en Alberta. Ce faisant, la Cour d’appel infirme les verdicts d’acquittement prononcés en première instance et reconnait l’existence d’un lien de connexité suffisant dans cette affaire, pour conférer juridiction au juge québécois. Un passage pertinent permet de mieux cerner le raisonnement derrière :

[15]   With respect to the present case, there was evidence that the scheme continued from Montreal to Alberta and back and included the presence of the respondents.  Thus, jurisdiction can be found in Montreal due to the continuity of this operation.  Second, the evidence in this case discloses overt acts in Quebec that are “referable to or in furtherance of a criminal plan” extending beyond Quebec. In the present case, for example, there was evidence that in Montreal the respondents received and harboured the two women, took photographs used in advertising and issued directions, received money from the women in Montreal.  Third, there was evidence that the scheme at issue in the case generated effects both in Quebec and Alberta and for this reason too territorial jurisdiction could be found in the Court of Quebec

[218]     Le Tribunal conclut détenir la compétence territoriale requise sur l’ensemble des faits se rattachant au dossier.

*** voir Polynice c. R., 2025 QCCA 907, qui confirme la condamnation sur d'Autres aspects du dossier ***

Infraction continue et gestes pluri-provinciaux : chaque province détient la compétence légale pour déposer des accusations et poursuivre les actes commis sur l'autre territoire s'il y a un élément de rattachement suffisant

R. v. J.K., 2026 ONSC 1340

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[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.