In R. v. Siwicki, 2022 MBCA 53, June 10, 2022, the accused and the Crown agreed to transfer a criminal matter to another judicial district within the province for a plea of guilty to be entered. A provincial court judge refused to transfer the charge. An application for certiorari was dismissed. An appeal was taken to the Manitoba Court of Appeal.
The Court of Appeal indicated that the “critical question on this appeal is whether a court maintains oversight over such requests. The parties submit that the answer to the question turns on the correct interpretation of section 479 of the Criminal Code”.
Section 479 states as follows:
Where an accused is charged with an offence that is alleged to have been committed in the province in which he is, he may, if the offence is not an offence mentioned in section 469 and
(a) in the case of proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, the Attorney General of Canada consents, or
(b) in any other case, the Attorney General of the province where the offence is alleged to have been committed consents,
appear before a court or judge that would have had jurisdiction to try that offence if it had been committed in the place where the accused is, and where the accused consents to plead guilty and pleads guilty to that offence, the court or judge shall determine the accused to be guilty of the offence and impose the punishment warranted by law, but where the accused does not consent to plead guilty and does not plead guilty, the accused shall, if the accused was in custody prior to appearance, be returned to custody and shall be dealt with according to law.
The Court of Appeal:
The appeal was dismissed and the decision of the provincial court judge affirmed.
The Manitoba Court of Appeal held that the “issue, put squarely, is whether it is the parties or the court that chooses the venue of a sentencing. For the reasons that follow, I would conclude that the final decision on venue rests with the court…The decision as to where the sentencing should be heard cannot rest with the parties. Courts, not the parties, are given the authority and responsibility under the Constitution and the legislative provisions to exercise their judicial functions and to control their process” (at paragraphs 41 and 46).
The Court of Appeal summarized its conclusions in the following manner (at paragraph 70):
a) given that all judges now have province-wide jurisdiction, section 479 of the Code is a vestige of the past. The territorial jurisdiction issues it was meant to address are spent, and it no longer has application in Manitoba;
b) the various regional or circuit court centres designated by the Minister of Justice, after consultation with the trial courts’ respective Chief Justice or Chief Judge, are established for administrative purposes, not for territorial jurisdiction purposes;
c) a judge’s jurisdiction to consider a request to change the venue of a sentencing is found in section 470, which relaxes the common law rule that a matter be tried where the offence was committed;
d) despite section 470, there remains a strong presumption that a matter ought to be tried where the offence was committed;
e) the court, not the parties, has the final word on where the sentencing hearing will occur; f) if section 479 were to have any appl