section 2


The definition of the term Superior Court of criminal jurisdiction is referenced numerous times in the Criminal Code and is set out at section 2.


2. In this Act, "superior court of criminal jurisdiction" means (a) in the Province of Ontario, the Court of Appeal or the Superior Court of Justice, (b) in the Province of Quebec, the Superior Court, (c) in the Province of Prince Edward Island, the Supreme Court, (d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Appeal or the Court of Queens Bench, (e) in the Provinces of Nova Scotia, British Columbia and Newfoundland, the Supreme Court or the Court of Appeal, (f) in Yukon, the Supreme Court, (g) in the Northwest Territories, the Supreme Court, and (h) in Nunavut, the Nunavut Court of Justice;


This section sets out the meaning of "superior court of criminal jurisdiction" as it relates to the various provinces and territories, each of which has its own hierarchy of courts. Superior Courts have the power to adjudicate more matters than a provincial or territorial court. While most criminal matters go through "low court", such as the Ontario Court of Justice, any more serious matters such as murder must be tried by a Superior Court of criminal jurisdiction. Superior Courts also have the ability to conduct trials by jury, whereas provincial courts do not. Both provincial and Superior Courts must be distinguished from appellate courts, which are not equipped to conduct trials whether with or without a jury. An appellate court will adjudicate the legal merits of a case based on transcripts to determine if legal errors were made. A superior court of criminal jurisdiction, however, may operate as a "summary conviction appeal" court, and resolve appeals from the provincial courts on matters that proceeded summarily. If an accused is tried by way of indictment, they will have the ability to make an "election" as to which court hears their matter, unless the offence is one of absolute jurisdiction.


Section 2 of the Criminal Code of Canada defines the term 'superior court of criminal jurisdiction' and specifies which courts will be included within this definition depending on the province or territory in question. This section is important because it speaks to the legal framework and hierarchy of the Canadian judicial system. The recognition of superior courts of criminal jurisdiction is significant in the Criminal Code as these courts have the power to hear the most serious criminal cases, such as murder or manslaughter, which carry potential life sentences. The section also clarifies which courts will be recognized as lower level courts for minor criminal offences. It is important that the Criminal Code specifies which courts will be recognized as 'superior courts'. This avoids confusion and ensures that there is consistency in the legal framework across the country. It also ensures that defendants receive a fair trial, as they are tried in a court with the authority to handle the severity of the crime in question. The inclusion of the different provincial and territorial courts within the definition of superior courts of criminal jurisdiction demonstrates the importance of recognizing the unique legal systems and structures of each province and territory in Canada. Each court has its own set of legal rules and regulations that must be adhered to in order to maintain a proper judicial structure. For example, the inclusion of the Nunavut Court of Justice as a superior court of criminal jurisdiction reflects the unique legal realities of the Northern territory of Nunavut. This court serves remote Indigenous communities and must accommodate cultural differences in its legal proceedings. The Criminal Code also recognizes that certain provinces may have different court structures. For example, Quebec's legal system differs from that of other provinces because of its French civil law system. In Quebec, the Superior Court is the only designated superior court of criminal jurisdiction, which is consistent with the province's legal system. In summary, section 2 of the Criminal Code of Canada serves to provide clarity and consistency in the legal framework of the Canadian justice system. It recognizes the unique legal structures and frameworks of each province and territory while ensuring that defendants receive a fair trial in a court that has the proper authority to handle the severity of the crime in question.


In situations where an accused has an election of which court to be tried in, there are significant tactical considerations involved. In cases where an offence is tried by indictment, an accused can have their matter tried by provnical court judge alone, or by judge alone at the Superior Court, or by judge and jury at the Superior Court. Each will have its advantages or disadvantages. Statistically, most criminal matters proceed through provincial courts. These courts or designed to handle volume. The bench - that is, the roster of sitting judges - are most often appointed from the local bar. Thus, a criminal defence lawyer or prosecutor will apply to become a provincial court judge, and be appointed from that pool of candidates. There are exceptions to this, of course, but generally, the local criminal bar feeds the local provincial court bench. In contrast, the Superior Court does not exclusively handle criminal cases. Superior Courts also handle family, civil, bankruptcy and other legal matters in addition to criminal litigation. Thus, the judges appointed are not always of a criminal law background. Thus, it is not uncommon that a seasoned criminal defence lawyer is having their criminal case tried by a seasoned family law lawyer, recently appointed, and now adjudicating in an area previously unfamiliar to them. Additionally, superior courts have the ability to try cases by jury. Much ink has been spilled attempting to analyse the wisdom of juries. Every defence lawyer or Crown will have their own stories and theories as to how and why juries arrive at their conclusions, but as a famous professor once said: "there is a lot of voodoo surrounding juries." Ultimately, the question will come down to the client's determination about whether they want one person determining the facts of their case, or twelve people determining the facts of their case. Will the accused testify and present well? Will the complainant testify and present well? Are the facts of the case graphic and do they have the potential to taint a jury? Is that matter polarizing? Is the matter highly technical and perhaps better suited to a seasoned trial judge? All of these are extremely fact and client specific considerations that must be analysed on a case by case basis.



Do all criminal charges have the option of being tried by a judge and jury?


No. Many offences do not provide the accused with the option of electing trial by judge and jury. Pursuant to section 471: "Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury." This provision, however, is tempered by section 473 which states: "Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction." Section 484, however, specifies that: "Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof." And pursuant to section 536(2.1) which reads: "If an accused is before a justice, charged with an indictable offence other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under section 553..."


Justice Watt of the Ontario Court of Appeal considers the jurisdiction of the Superior Court of Criminal Jurisdiction to proceed on an indictable matter in a situation where the Crown elects to proceed summarily, and the technical re-elections and waiver of limitation periods have not been recorded. The Court holds that the sentencing hearing at the Superior Court was invalid, but remands the sentencing back to the Ontario Court of Justice for sentencing. Paragraphs 46-66 detail the various jurisdictions of the provincial court, the Superior Court and the Crown to make elections throughout the process.
An accused was detained by a Superior Court on an indictable offence of conspiring to traffic in a narcotic, to wit, cocaine. The accused grieved that the detention by a Superior Court in effect disallowed an appeal of that order, which would otherwise be appealed to the very same Superior Court that did the initial detention. The Ontario Court of Appeal ruled as follows: "It was submitted that because the original detention order was initially made by a justice of the Supreme Court of Ontario, the accused would be denied a right of review if required to appear before a justice of the same court. I do not agree. In the case of R. v. Semenick this argument was considered by Chief Justice Monnin. In Manitoba, the Court of Appeal is designated as a superior court of criminal jurisdiction and, thus, in that sense there would be jurisdiction in a justice of appeal to entertain an application for a review of a detention order."
The Ontario Court of Appeal considered the question of jurisdiction on a bail hearing, where an accused was released on bail on a charge of first degree murder, and is then charged with a breach of that recognizance. Since only the Superior Court can determine bail on a charge of first degree murder pursuant to sections 469 and 522(1) of the Code, the question was what power a provincial court had to determine bail on a breach of a Superior Court order? The Court determined that the provincial court did indeed have the jurisdiction to determine bail on a breach of a superior court bail order, and ruled as follows: "I conclude by returning to the issue raised by this appeal, that is, the jurisdiction in the circumstances of this case of the justice of the peace to conduct a show cause hearing in respect of the charges laid under s. 145 of the Code. Given the absence of any intention on the part of Crown counsel to invoke the procedure set out in s. 524, the justice of the peace had the requisite jurisdiction and Mr. Justice Watt was right in requiring him to exercise it. Accordingly, I would dismiss the appeal."