The word “jurisdiction” comes from the Latin word ‘juris’ meaning law, and ‘dicere’ meaning to speak. It indicates the authority granted to the courts to deal with and make decisions on legal matters. It also denotes the geographical area the authority applies to. Jurisdiction is what grants the court the power to proceed with a particular offence at a particular time. Any proceeding that is conducted without jurisdiction is a nullity, meaning it will be treated as if it never happened.
What are the Preconditions for a Court to Obtain Jurisdiction?
There are three preconditions that need to be satisfied before the Court can obtain jurisdiction.
- Information and Indictment
- The Presence of The Accused In Court
- The Court Must Act On The Charge
This is the There must be a charging document before the court. This is referred to as the information or indictment. The information is the document which sets out the formal accusations against the accused. The crown must prove exactly what is charged in the document. Any discrepancy between the information and the evidence the prosecution adduces before the Court may give rise to a defence to the charge.
For example, if the information charges the accused with possession of marijuana, the Crown must prove possession of marijuana. If it turns out that what the accused in fact possessed was cocaine, then the Crown has failed to prove the charge set out in the information. If the Crown cannot prove the accusation(s) in the information, the accused will not be convicted.
The accused can be compelled to attend court through a summons or some other legal process which brings the accused before the Court. In certain cases, if the documentation compelling appearance is flawed, the mere presence of the accused in court can remedy the defect in the documentation. When the accused is not lawfully compelled to attend the court, the court will lose jurisdiction over the person in spite of the fact that the documentation is there. This can happen initially if there is some mistake or clerical error in the document which compels the accused attendance. This error can be easily cured. The court can issue a new process to compel the accused attendance.
Also, the accused can voluntarily attend court. Voluntary attendance will correct the problem because the accused, by attending, is attorning to the court’s jurisdiction. The accused is not required to personally appear all the time. If the accused is charged with a summary offence, a lawyer or agent can appear on his/her behalf. If the accused is charged with a hybrid offence, it is deemed indictable until the Crown elects how they will proceed. If the accused is charged with an indictable offence, they must attend court. However, under the Criminal Code amendments effective July 2002, a lawyer or articling student can appear for you on any charge when a ‘designation’ is filed with the court. This means that although you will not have to personally attend a first appearance or set-date, you will still be required to attend the trial.
This means something has to happen if the accused and the information are in the court. Parliament amended the Criminal Code to prevent the information from becoming a nullity when the court fails to act. Section 485.1 of the Criminal Code states:
“Jurisdiction over the offence is not lost by reason of the failure of court to act in exercise of that jurisdiction at any particular time or by reason of a failure to comply with any of the provision of this Act respecting adjournments or remands”.
What if the Charging Document is Worded Incorrectly?
If the charge against you is worded incorrectly, the Crown may attain the remedy of an amendment. This allows the Crown to amend the information to conform to the facts of the case. The Crown’s power to amend the information is continuing and may occur at any time before your trial. However, the Crown may not amend the information if to do so would cause the accused prejudice in his/her ability to make full answer and defence.
What Happens If You Attend Court and There is no Information before the Court?
If there is no information before the court, then the Court does not have any jurisdiction to deal with the matter. If you are at your first appearance and you cannot find your name on the docket and there is no information charging you before the court, the court will lose jurisdiction. It is important to double check the date of your first appearance to ensure you have not confused the dates yourself. You will also want to have the clerk of the court endorse your summons with the date of the appearance to prove, if necessary, in the future that you attended Court when you were supposed to, but that there was no information before the court.