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General Principles 

A court will have jurisdiction if it has authority over the persons in, and the subject matter of, a proceeding, and has the authority to make the order sought: R v Fercan Developments Inc., 2016 ONCA 269 at para 41

A trial judge exercising the functions of both judge and jury in a criminal case is not functus following a finding of guilt until he or she has imposed sentence or otherwise finally disposed of the case:” R v Sualim, 2017 ONCA 178 at para. 29.


Once the Crown has exercised its right under section 579 to direct a stay of proceedings, the judge, whether a Summary Conviction Court judge or a Superior Court judge, is functusR v Martin, 2016 ONCA 840 at paras 38, 42. 43

However, in a situation where a trial judge comes to a final disposition in a matter, including entering a judicial stay of proceedings, he or she retains jurisdiction to craft an appropriate remedy for a Charter violation, including awarding costs, where appropriate. That is because a remedy under s. 24(1) of the Charter, in those circumstances, is part of the trial judge’s discretionary adjudicative process. Martin at para 39

Jurisdiction of the Ontario Court of Justice

As a statutory court, the Ontario Court of Justice does not have any inherent jurisdiction and derives its jurisdiction from statute.

It enjoys powers that are expressly conferred upon it and, by implication, any powers that are reasonably necessary to accomplish its mandate. For example, the power to control its own process is necessarily implied in a legislative grant of power to function as a court of law. This power is largely parallel to a superior court's ability to control its own process. It cannot contravene explicit statutory provisions or constitutional principles like the separation of power. It also enjoys certain implied powers that accrue to it as a court of law, as well as certain powers implied in the context of particular statutory scheme: R v Fercan Developments Inc., 2016 ONCA 269 at paras 44, 51-52

Implied Powers / The Doctrine of Jurisdiction by Necessary Implication


  • A power or authority may be implied:

    1. when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate;

    2. when the enabling act fails to explicitly grant the power to accomplish the legislative objective;

    3. when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

    4. when the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; or

    5. when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.

Whether a statutory court is vested with the power to grant a particular remedy depends on an interpretation of its enabling legislation

When ascertaining legislative intent, a court is to keep in mind that such intention is not frozen in time. Rather, a court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances. Furthermore, courts need to consider the legislative context when interpreting the legislation at issue.

The power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose: R v Fercan Developments Inc., 2016 ONCA 269 at paras 45-48

For a review of implied power to award costs: click here

Division of Powers 


General Principles

The Constitution Act, 1867 gives Parliament exclusive legislative authority over criminal law (with the exception of the constitution of courts of criminal jurisdiction) under s. 91(27).  Under s. 92(15) of the Constitution Act, 1867, the provinces also have the authority to impose punishment by fine, penalty or imprisonment for the purpose of enforcing otherwise valid provincial laws.

To constitute criminal law, the impugned enactment requires a prohibition and a penal consequence.  In addition, the prohibition has to serve a criminal public purpose. 

The Division of Power Analysis

a) Pith and Substance

The first step is to determine the “matter” of the legislation in issue. The analysis involves an examination of: (i) the purpose of the enacting body, and (ii) the legal effect of the law. 


The purpose of the enacting body is determined by examining both intrinsic and extrinsic evidence. Intrinsic evidence consists of the content of the enactment itself. While a court is not bound by an enactment’s purpose clause when considering the constitutional validity of an enactment, a statement of legislative intent is often a useful tool.


Extrinsic evidence, such as legislative debates or Hansard, may also be relevant in determining the purpose of the enacting body, but the evidence must be reliable and should not be given undue weight. Purpose may also be ascertained by considering the “mischief” of the legislation – the problem which Parliament sought to remedy. Importantly, the purpose of the enacting body must not be confused with the enacting body’s motive, or with the motive of any individual member

When examining the legal effect of the enactment, the court looks at how it affects the rights and liabilities of those subject to its terms and the actual or predicted practical effect of the law.

(b)           Assignment to a Head of Power

Once the pith and substance has been identified, the second step in the analysis is to assign the matter of the challenged legislation to a head of power under either ss. 91 or 92 of the Constitution Act, 1867.

York (Regional Municipality) v Tsui, 2017 ONCA 230 at paras 55-73​

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