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Classic Precedents:  Certiorari and Judicial Review

Pronunciation:  Classic Latin vs. Law Latin

In legal writing, certiorari is often abbreviated cert. But the full word is a tongue-twister. A few years ago the Washington Post surveyed US Supreme Court Judges on their pronunciation:

  • Justice Stephen G. Breyer: ser-shah-rair-eye (last two syllables rhyme with fair guy).
  • Justice Antonin Scalia: second-last syllable has a broad a (rhymes with far cry).
  • Chief Justice William H. Rehnquist: ser-shah-rair-ee (rhymes with Tipperary).
  • Justice Clarence Thomas: pronounce final two syllables as rahr-ree.

Ancient Romans pronounced the first syllable with a hard c (kair-tee-oh-rahr-eye) which is taught to classics students today. Don't try that in court. Over millennia, Law Latin adopted English pronunciation rules. According to Black's Law Dictionary:

  • Certiorari is a five-syllable word, with the o pronounced separately (as in ratio).
  • Justice Breyer wins: rair-eye is the preferred ending. It meets English rules where vowels at the end of accented syllables are long, and an i at the end of a word is always long.

Source: The Washington Post

R. v. Chabot (1980) SCC 54

Certiorari:   What is the Limitation Period?

Once an Indictment is preferred, it becomes the operative document. An application for Certiorari must be formally filed in Queen's Bench Court before then.

In the case R. v. Chabot, the Supreme Court of Canada asked: Does the existence of an Indictment at some point operate as a bar to an attack by Certiorari upon the validity of the committal for trial; if so, at what point does it become a bar?

The Supreme Court decided: The Indictment must be challenged (such as by Certiorari) before it becomes preferred. The simple act of signing the Indictment and filing it with the Clerk of the court cannot constitute preferment. Signing and filing the Indictment are only administrative acts which do not alter the right of the accused to challenge his committal for trial.

The step of preferring an Indictments occurs in the courtroom, during the arraignment of the accused preceding trial. The Indictment must be set before a Judge who is ready to try the accused. The Clerk reads the Indictment to the accused and follows it with the question: How say you, Are you Guilty or Not Guilty? The process is complete when the accused's answer (the plea) is entered into the record.

Summary: The Indictment does not become the operative document until it is read aloud to the accused in arraignment court, and a plea taken.

Skogman v. The Queen (1984) SCC 22

Certiorari Can Quash an Order to Stand Trial

In the course of a Preliminary Inquiry, evidence is adduced through witnesses, exhibits, or admissions. The presiding Judge has jurisdiction to use all of this evidence to make determinations of fact, apply the law to those facts, and, finally, exercise his discretion to either discharge the accused or commit the matter for trial.

The Criminal Code, under Adjudication and Recognizances, contains instructions on how to evaluate the evidence gathered at a Preliminary Inquiry. There is both a broad and a narrow duty:

CCC s. 548(1)(b) – Instructs and allows the Preliminary Inquiry Judge to consider the whole or the totality of the evidence.

CCC s. 548(1)(a) – Informs the Preliminary Inquiry Judge that sufficient evidence must exist before a matter is bound over for trial. This requires proof of each essential element of a charge: These elements are found in the CCC sections, or counts, listed on the arrest warrant.

Regarding the narrow duty, the Preliminary Inquiry Justice is to view each charge against the accused as a series of essential elements strung together. Each element must show some evidence of its truth, or the chain is broken beyond mending.

The accused will be ordered to stand trial if all required evidence exists. But if evidence is completely absent for one or more essential elements of the offence, and the Judge still commits the matter for trial, then that Judge has exceeded his jurisdiction, or has refused to exercise his full jurisdiction. In the latter case, a Writ of Certiorari filed in a superior court can challenge, review, and quash such an order for trial.

[Tuum Est note: Read enough case law and you find that the broad duty, to weigh the whole of the evidence, has an elastic interpretation. This is a battleground: Committals for trial, overturning the committal, reversal again by another judge – in most cases with arguments vague, jejune, and self-serving; often the accused is a justice insider. Case in point: R. v. Deschamplain (2004) SCC.

When writing the Criminal Code, Parliament built in latitude for discretion, to allow a measure of humanity to enter the cold halls of justice. But CCC section 548(1)(b) can be equally susceptible to conflict-of-interest, and to unconscious bias called the Inarticulate Major Premise.]

R. v. Klassen (1995) SKQB 6014

Certiorari and the Mens Rea Element

Saskatoon citizen Sheila Steele was charged with defamatory libel under CCC s. 300. She applied for Certiorari to quash her committal for trial on the basis that the Crown failed to introduce any evidence that she knew her statements were false.

The law is settled. Judicial review is available via Certiorari if the Preliminary Inquiry Judge lacked jurisdiction. A Judge lacks jurisdiction to order a trial if no evidence exists for an essential element of the charge. If evidence does exist upon which a reasonable jury properly instructed could convict at a trial, the Certiorari challenge will fail.

CCC s. 300 sets a stringent standard on mens rea: The Crown must establish that the accused intended to defame and had subjective knowledge of the falsity of the matter published. Refer to the language of s. 300: knowing that the matter published was false. That places s considerable burden on the Crown but it does reflect Parliament's concern to protect freedom of speech. It is not enough for the Crown to show that what the accused said was false. It must show that the accused knew it was false.

Nothing in the Preliminary Inquiry evidence showed that Ms. Steele disbelieved the words on her placard. The court granted her Certiorari application, and quashed her committal for trial. The second applicant in this case, Richard Klassen, did not succeed with Certiorari. The difference hinged on the following point:

When the police took Ms. Steele into custody she got fairly excited and started to fight and try to get away. She was placed in a van and Mr. Klassen was walked to the station. Richard Klassen was calm throughout the incident and arrest.

The Judge presiding over the Certiorari application ruled: That point indicates Klassen marched with his placard in order to be charged. He wanted to be charged. He was so determined to have the issue brought before the court that he marched with his placard to procure an arrest and provide himself with a platform. It is impossible to determine his precise state of mind, but his remarks to police and his conduct raised a sufficient presumption to justify committing him for trial in accordance with U.S.A. v. Shephard.

Dubois v. The Queen (1986) SCC 60

No Jurisdiction to Act Arbitrarily

Superior courts have always exercised their inherent authority to ensure that lower courts fully exercise their powers without exceeding their jurisdiction. A Preliminary Hearing is an example of a lower tribunal so bound.

A Preliminary Hearing is entirely statutory and its activities are measured, upon judicial review, against the jurisdiction accorded to it by the governing statute, which is: CCC Part XVIII: Procedure on Preliminary Inquiry (sections 535 to 551).

Supervisory remedies are meant to correct errors of jurisdiction made by a lower court. But supervisory remedies cannot be expanded to correct errors of law such as errors in the admissibility or production of evidence. Examples where the supervisory remedy of Certiorari is allowed to rectify the result of a Preliminary Hearing:

  • Suppose the Preliminary Hearing Judge makes an incorrect ruling on admissibility of some evidence, which in turn impedes the defendant's right to call or cross‑examine witnesses. The defence is prejudiced to such an extent that natural justice is violated. Any violation of natural justice falls squarely under the umbrella of jurisdictional error.
  • Suppose the Judge violates one of the Rules of Procedure on Preliminary Inquiry. Those rules are not mere yardsticks for ethical conduct. They are law. They are considered mandatory provisions of the Criminal Code, set down in CCC sections 535 to 551. The Canadian Parliament carefully circumscribed the powers of a Preliminary Hearing. There is no jurisdiction to act arbitrarily.

A Preliminary Hearing is not intended to determine innocence or guilt but only whether the evidence is sufficient to warrant the accused's standing trial. Both parties at the Hearing are subject to the same obligations, and both enjoy the same rights under the jurisdictional test. Thus a Writ of Certiorari may be sought:

  • By the accused to quash an order for trial; or
  • By the Crown to obtain an order for trial.

The court ought not to refuse Certiorari just because alternative remedies might be available (aside from an Appeal), unless the court is clearly satisfied that those other remedies are more appropriate.

R. v. Thomson (2005) ONCA 8664

Certiorari Application from the Crown

The Criminal Code is specific about which officials may commit a matter to trial. Under CCC s. 548, the power to order an accused to stand trial following a Preliminary Inquiry is reserved for a Justice.

The Criminal Code is strict when defining the role of a Justice: this person is either a Justice of the Peace, or a Provincial Court Judge; the definition excludes a superior court Judge. Even Part XXVI of the Criminal Code, which describes Extraordinary Remedies, does not in any of its many sections, confer jurisdiction upon a superior court Judge to order an accused to stand trial.

In proceedings which review the decision of a lower tribunal (such as with Certiorari), the superior court cannot substitute its decision for that of the original decision-maker, nor can it create a new ruling. The superior court can only undo, quash or set aside the proceedings of the lower tribunal. Certiorari is not a remedy akin to an appeal, thus the superior court cannot take over or exercise the jurisdiction of the tribunal whose verdict is challenged. The remedy is negative in nature, not positive.

A Preliminary Inquiry, held at the Provincial Court level, has two possible outcomes: the accused is ordered to stand trial, or is discharged. Either party – the accused or the Crown – can challenge the outcome by filing a Certiorari application in Queen's Bench Court (which is the next level up). Because a superior court has limited remedial power exercisable on Certiorari, the sequels are not mirror images. Current practice:

Suppose the accused is bound over for trial by the Preliminary Inquiry Justice. If the accused challenges that order via Certiorari and succeeds, the superior court will quash the committal for trial.

Suppose the accused is discharged by the Preliminary Inquiry Justice. If the Crown challenges the discharge via Certiorari and succeeds, the only remedial action open to the superior court is to remit the matter back to the Preliminary Inquiry Judge for further consideration of the evidence. The superior court itself cannot send the matter to trial.

Historically, judicial review Judges commonly wrote committals for trial, but there was little consideration given to the propriety of the practice. Then in the 1990s the Nova Scotia Appeal Court narrowed the scope of Certiorari to permit only a discharge of the accused (quashing the order for trial).

For any other result, the Nova Scotia court said a better approach was to remit the case back to the Preliminary Inquiry Judge for reconsideration of the evidence – either the whole of the evidence, or the sufficiency of the evidence (whether proof exists for each essential element of the charges). The Supreme Court of Canada concurred:

R. v. Whynot (1994) NSCA 4130
Nova Scotia ruling:  Superior courts have no power to make a committal order for trial. There has been no statutory enlargement of the court's jurisdiction in granting an order in the nature of Certiorari.

R. v. Deschamplain (2004) SCC 76
Supreme Court ruling:  If a higher court determines that a Preliminary Inquiry Judge wrongly discharged an accused based on a jurisdictional error, the only action the higher court may take is set aside the discharge order, and remit the matter back to the Preliminary Inquiry Judge to consider the whole of the evidence.

R. v. Sazant (2004) SCC 77
Supreme Court ruling:  A higher court can only set aside the discharge order, and remit the matter back to the Preliminary Inquiry Judge to consider the sufficiency of the evidence.

Queen’s Bench Rules of Court: Saskatchewan

Rules Specific to Originating Applications for Judicial Review

3-56(1) An originating application for judicial review may be made by any person having an interest that the Court considers sufficient in the matter to which the originating application relates.

3-56(2) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review:

  1. an order in the nature of mandamus, prohibition, certiorari, quo warranto, habeas corpus, or to quash proceedings;
  2. a declaration or injunction.
Notice to obtain record of proceedings

3-57(1) An originating applicant for judicial review who seeks an order to set aside a decision or act must include with the originating application a notice in Form 3-57, addressed to the person or body that made or possesses the record of proceedings on which the decision or act sought to be set aside is based, to send the record of proceedings to the local registrar named in the notice.

3-57(2) The notice must require the following to be sent or require an explanation of why an item cannot be sent:

  1. the written record, if any, of the decision or act that is the subject of the originating application for judicial review;
  2. the reasons given for the decision or act, if any;
  3. the document that started the proceeding;
  4. the evidence and exhibits filed with the person or body, if any.

3-57(3) The Court may add to, dispense with or vary anything required to be sent to the local registrar under this rule.

Additional remedies on judicial review

3-61(1) If the Court is satisfied that there are grounds for quashing or declaring void a decision to which the originating application relates, the Court, in addition to granting that remedy, may remit the matter to the court, tribunal or other authority concerned with the direction: (a) to rehear it or to reconsider it; and (b) to reach a decision according to law.

Rules Adopted Under Criminal Code

3-62 The rules in this subdivision are adopted, with any necessary modification, as rules in applications to which the provisions of the Criminal Code apply.

[Note:  Other provinces have similar Q.B. Rules, though the particulars differ slightly by region.]

Canadian Criminal Code

Part XVIII: Procedure on Preliminary Inquiry

Adjudication and Recognizances

Order to Stand Trial or Discharge

CCC s 548. (1)  –  When all the evidence has been taken by the justice, he shall

  1. if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
  2. discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
Endorsing Charge

CCC s 548. (2)  –  Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.

Where Accused Ordered to Stand Trial

CCC s 548. (2.1)  –  A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.

Defect Not to Affect Validity

CCC s 548. (3)  –  The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.

Definitions

CCC s 2.  –  In this Act, Justice means a Justice of the Peace or a Provincial Court Judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction.

Canadian Criminal Code

Part XXVI - Extraordinary Remedies

Extraordinary Remedies

CCC s 774.  –  Part XXVI of the Criminal Code applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.

Effect of Order Dismissing Application to Quash

CCC s 780.  –  Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.

Appeal in Mandamus, Certiorari, etc.

CCC s 784. (1)  –  An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

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