Jurisdictional Errors and Certiorari Applications

September 30, 2021
Certiorari Application conducted after preliminary hearings.

The question that a preliminary inquiry judge is to ask under section 548(1) of the Criminal Code in making an order to stand trial or to discharge is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”[1]. A decision by a preliminary inquiry judge to commit an accused to trial or not is reviewable by the high court via writ of certiorari [2]

The scope of judicial review of certiorari is very limited, only allowing review where “it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities is taken to be an excess of jurisdiction” [3]. This limited scope of review reflects the limited screening purpose of the preliminary inquiry, only allowing review for jurisdictional error, and not mistakes of fact or law[4]. 

What is a Jurisdictional Error? 

Jurisdictional error speaks not of an initial lack of jurisdiction of the judge or magistrate presiding over the preliminary inquiry, but rather the tribunal or judge acting in excess of its assigned jurisdiction or acting in breach of the principles of natural justice, which is taken to be an excess of jurisdiction [5]. The number of situations where this can occur is few [6].

Examples of acting in excess of assigned jurisdiction include failing to observe mandatory Criminal Code provisions such as considering the evidence in its entirety [7] or committing an accused to trial despite the total absence of evidence on one or more essential elements of the offence [8].  All that is required is a “scintilla” of evidence on the essential elements of the offence[9]. Further, where more than one inference can be drawn from the evidence, only the inference favouring the Crown is to be considered, and a “preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction”[10]. 

The “Scintilla of Evidence” 

In committing an accused to trial there must be a “scintilla of evidence” on each of the essential elements of the offence. To commit an accused to trial without such evidence would be a jurisdictional error[11]. 

Credit

This piece was written originally by Dilan Brar. Currently, Dilan Brar is a second-year law student at the University of Toronto. 

Citations

  • 1 R v Arcuri, 2001 SCC 54 at para 21 citing United States v Shepard. 2R v Skogman, [1984] 
  • 2 S.C.R. 93, 1984 CarswellBc 751 at para 5. 
  • 3 Ibid. 
  • 4 R v Russell, 2001 SCC 53 at para 19-20. 
  • 5 Supra note 1. 
  • 6 R v Forsythe, [1980] 2 S.C.R. 268, 1980 CarswellOnt 37 at para 3. 
  • 7 R v DesChamplain, 2004 SC 76 at para 18. 
  • 8 Supra note 5 at para 21. 
  • 9 Supra note 2 at para 14. 
  • 10 R v Sazant, 2004 SCC 77 at para 18. 
  • 11 Supra note 4 at para 21. 
  • 12 R v Colvin, [1943] 1 D.L.R. 20, 1942 CarswellBC 59 at para 19-20. 

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