Writ of Certiorari

This page was last substantively updated or reviewed June 2023. (Rev. # 96003)

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General Principles

Certiorari is a type of common law writ where the applicant seeks judicial review of a judge's decision by a higher court. It can only be issued when the reviewable court has exceeded its jurisdiction or otherwise a breach of the rules of natural justice, fraud, or an error of law so fundamental a character that it constitutes a defect amounting to a failure or excess of jurisdiction.

Unlike an appeal, an application for certiorari can be brought at any point in a proceeding, and is not limited to the conclusion of the proceeding.

The right to certiorari is discretionary arising out of the inherent jurisdiction of the superior court. The right can be denied on the basis of "unnecessary delay" or lack of "good faith."

Third-party Right of Review

The scope of available review is more expansive when the petitioner is a third-party to the criminal proceedings.

For example, third-parties may apply for certiorari on pure errors of law.

Effect of Successful Application

A successful application of certiorari will quash the decision of the lower court.

Limitations on Review of Certiorari

Review by certiorari is "very limited". It is primarily a "jurisdictional review" or surveillance of statutory tribunals. The reviewing court cannot overturn a decision based merely on an error in law or a decision "different from that which the reviewing court would reach." The court may only intervene where "the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice."

The mere fact that the reviewing judge may have concluded differently does not entitle the court to intervene.

Erroneous ruling on evidence is not a failure of jurisdiction and so cannot be reviewed on certiorari.

Errors of Law

Generally, errors of law are not reviewable by certiorari.

It is not sufficient that there be an error on a Charter issue, statutory interpretation, admissibility, or sufficiency of evidence.

Statutory Right of Appeal

Certiorari should generally be denied when the inferior court's enabling statute provides a right of appeal or where there is an adequate alternative remedy.

It is only in very rare cases that expediency would be a reason to grant a writ where there is a statutory right of appeal. Even where an appeal of a forfeiture order requires separate appeals to different levels of court, they should still be denied a writ to consolidate.

No Right to Appeal Against a Superior Court

In criminal proceedings, certiorari is not available against a superior court.

When Not Available by Statute

By function of s. 776, no writs of certiorari are available where an appeal is undertaken, or where an appeal was available but was not taken.

Where conviction or order not reviewable

776. No conviction or order shall be removed by certiorari

(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion; or

(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

R.S., c. C-34, s. 710.

– CCC (CanLII), (DOJ)

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No Horizontal Review

A superior court has no jurisdiction to review a decision of another superior court judge.

Jurisdictional Errors

A reviewing court's job is different from that of a court on a straight appeal. The role is only to review the exercise of jurisdiction.

Any failure on the part of the judge to "observe mandatory provisions of the Criminal Code" will result in a loss of jurisdiction.

Deciding an issue reserved only for a different forum is also jurisdictional error.

There is a difference between errors of law and errors of jurisdiction. The distinction is on the process followed by the judge.

A failure to consider all evidence or a consideration of an irrelevant consideration may amount to an error in jurisdiction.

Specific Examples

In practice, certiorari can be used to review search warrants , orders of committal to stand trial, and quashing subpoenas.

The following have been found to be jurisdictional errors:

• a preliminary inquiry judge committing an accused to stand trial where there is no evidence on an essential element of the offence charged
• a preliminary inquiry judge committing an accused to stand trial based on inferences that cannot be reasonably drawn.

Warrants

Attacking search warrants by way of prerogative writ is generally not frequently used nor considered effective since nullifying a warrant will not necessarily make the evidence inadmissible at trial without establishing its exclusion under s. 24(2).

Subpeonas

A subpoena may be quashed if the "party seeking to uphold a subpoena is not able to demonstrate that the witness would “likely” or “probably” have material evidence then certiorari may issue to quash the subpoenas."

Committal at Preliminary Inquiry

See also Preliminary Inquiry

The decision on committal by a preliminary inquiry judge may be quashed by a writ of certiorari. This can include quashing of an order of committal or an order of discharge.

In the context of a preliminary inquiry, it is within the inquiry judge's jurisdiction to draw inferences of fact in their decision of commit. However, if the judge "preferred an inference favourable to an accused to an inference, also availed on the evidence, favourable to the Crown."

A failure to make the correct decision on the evidence may not necessarily result in a loss of jurisdiction. There must be an absence of even a "scintilla of evidence" supporting an essential element of the charge.

It will be an error of jurisdiction where the preliminary judge "failed to test the evidence adduced at the inquiry against the essential elements of the offence." This also requires that the elements considered must be the correct ones.

The consideration of irrelevant factors in committal may result in a loss of jurisdiction.

Procedure

The reviewing court has the ability to return the case back to the initial preliminary inquiry judge for further evidence and submissions. To some, it is the "proper course" in any given case.