Mandamus, Certiorari, and Prohibition

From Criminal Law Notebook

Prerogative Writs

See also: Habeas Corpus

Applications for prerogative writs consisting of certiorari, habeas corpus, mandamus, procedendo, or prohibition are governed by Part XXVI (s. 774 to 784):

Application of Part
774 This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.
R.S., 1985, c. C-46, s. 774; R.S., 1985, c. 27 (1st Supp.), s. 169.


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Courts should be "reluctant" to exercise interlocutory prerogative remedies.[1]

  1. ↑ R v McGrath, 2007 NSSC 255 (CanLII) at para 38

Remedial Powers to Fix Defects

Section 777 permits the court to remedy certain defects in orders that would otherwise be invalid on application of certiorari.

Conviction or order remediable, when
777 (1) No conviction, order or warrant for enforcing a conviction or order shall, on being removed by certiorari, be held to be invalid by reason of any irregularity, informality or insufficiency therein, where the court before which or the judge before whom the question is raised, on perusal of the evidence, is satisfied

(a) that an offence of the nature described in the conviction, order or warrant, as the case may be, was committed,
(b) that there was jurisdiction to make the conviction or order or issue the warrant, as the case may be, and
(c) that the punishment imposed, if any, was not in excess of the punishment that might lawfully have been imposed,

but the court or judge has the same powers to deal with the proceedings in the manner that the court or judge considers proper that are conferred on a court to which an appeal might have been taken. Correcting punishment
(2) Where, in proceedings to which subsection (1) applies, the court or judge is satisfied that a person was properly convicted of an offence but the punishment that was imposed is greater than the punishment that might lawfully have been imposed, the court or judge

(a) shall correct the sentence,
(i) where the punishment is a fine, by imposing a fine that does not exceed the maximum fine that might lawfully have been imposed,
(ii) where the punishment is imprisonment, and the person has not served a term of imprisonment under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed, by imposing a term of imprisonment that does not exceed the maximum term of imprisonment that might lawfully have been imposed, or
(iii) where the punishment is a fine and imprisonment, by imposing a punishment in accordance with subparagraph (i) or (ii), as the case requires; or
(b) shall remit the matter to the convicting judge, justice or provincial court judge and direct him to impose a punishment that is not greater than the punishment that may be lawfully imposed.

Amendment
(3) Where an adjudication is varied pursuant to subsection (1) or (2), the conviction and warrant of committal, if any, shall be amended to conform to the adjudication as varied.
Sufficiency of statement
(4) Any statement that appears in a conviction and is sufficient for the purpose of the conviction is sufficient for the purposes of an information, summons, order or warrant in which it appears in the proceedings.
R.S., 1985, c. C-46, s. 777; R.S., 1985, c. 27 (1st Supp.), s. 203.


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Irregularities within section 777
778 Without restricting the generality of section 777, that section shall be deemed to apply where

(a) the statement of the adjudication or of any other matter or thing is in the past tense instead of in the present tense;
(b) the punishment imposed is less than the punishment that might by law have been imposed for the offence that appears by the evidence to have been committed; or
(c) there has been an omission to negative circumstances, the existence of which would make the act complained of lawful, whether those circumstances are stated by way of exception or otherwise in the provision under which the offence is charged or are stated in another provision.


R.S., c. C-34, s. 712.


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Further, a warrant of committal cannot be held void by writ where it contains a "valid conviction" and names the defendant as convicted.[1]

  1. ↑ s. 782

Procedure

A judge may require that any applicant of certiorari enter into a recognizance for the duration of the application.[1]

Where a application to quash has been refused, the matter is to be returned to the original jurisdiction without need of an application of procedendo.[2]

  1. ↑ see s. 779
  2. ↑ see s. 780

Rules of Court

Superior courts have the authority to set their own rules regarding prerogative writs:

Power to make rules
482. (1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.
...
Purpose of rules
(3) Rules under subsection (1) or (2) may be made
...

(c) to regulate the pleading, practice and procedure in criminal matters, including pre-hearing conferences held under section 625.1, proceedings with respect to judicial interim release and preliminary inquiries and, in the case of rules under subsection (1), proceedings with respect to mandamus, certiorari, habeas corpus, prohibition and procedendo and proceedings on an appeal under section 830; and

R.S., 1985, c. C-46, s. 482; R.S., 1985, c. 27 (1st Supp.), s. 66; 1994, c. 44, s. 35; 2002, c. 13, s. 17.


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Within each province, the superior courts will incorporate rules of procedure regarding applications for writs.[1]

  1. ↑ e.g. Rule 64 of the Nova Scotia Civil Procedure Rules

General Principles of Mandamus

An order of mandamus (latin for "we command") is a common law "prerogative writ" power of a superior court to order a lower court or government agent to perform a mandatory duty correctly.[1]

It is a discretionary remedy to compel a lower court to exercise jurisdiction where it has incorrectly refused to do so.[2]

A prerogative writ is a manner of correcting errors of jurisdiction made by inferior courts as well as correcting failures of natural justice or procedural fairness.[3]

Mandamus is available where an inferior judicial body "has either failed or wrongly exercised its jurisdiction such that there has been a jurisdictional error... If [the judicial body] erroneously refuses to act on the grounds that it lacks territorial or legal jurisdiction, mandamus will lie to compel it to accept jurisdiction."[4]

When the duty is of a judicial nature, mandamus is not available regardless of whether the decision was incorrect. No superior court can change that decision except for exceptional circumstances such as prejudice, bias, personal interest, dishonesty, and the like.[5]

The order is only available where the body refuses to exercise its jurisdiction.[6]

Despite having jurisdiction, a superior court can refuse prerogative relief if there is an equally effective alternative remedy.[7]

  1. ↑ R v M.P.S., 2013 BCSC 525 (CanLII) ("Mandamus, ... is the name of the prerogative writ that issues from a court of superior jurisdiction to the inferior tribunal commanding the latter to exercise its jurisdiction.")
  2. ↑ R v MacDonald, 2007 NSSC 255 (CanLII) at para 17
  3. ↑ R v Forsythe, 1980 CanLII 15 (SCC), [1980] 2 SCR 268, 53 CCC (2d) 225
  4. ↑ M.P.S. at para 10
  5. ↑ R v Coughlan (1969), [1970] 3 CCC 61 (Alta. T.D.), 1969 CanLII 949 (AB QB) at p. 72
  6. ↑ R v Faber, (1987), 38 CCC (3d) 49 (Que. Sup. Ct.), 1987 CanLII 6849 (QC CS), at 54
  7. ↑ Harelkin v University of Regina, 1979 CanLII 18 (SCC), [1979] 2 SCR 561 at p. 588

General Principles of Certiorari

Certiorari is 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[1] 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.[2]

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.

Review by certiorari is "very limited". It is primarily a "jurisdictional review" or surveillance of statutory tribunals. [3] The reviewing court cannot overturn a decision based merely on 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".[4]

The mere fact that the reviewing judge may have concluded differently does not entitle the court to intervene.[5]

Generally, errors of law are not reviewable by certiorari.[6]

A failure to consider all evidence or a consideration of an irrelevant consideration may amount to an error in jurisdiction. [7]

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".[8]

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. [9]

It is not sufficient that there be an error on a Charter issue, statutory interpretation, or admissibility/sufficient of evidence. [10]

It is for this reason that the reviewing court's job is different from that of a court on a straight appeal. [11]

Effect of Successful Application
A successful application of certiorari will quash the decision of the lower court.[12]

Standard of Review
The reviewing judge must afford "greatest deference" to the lower court it is reviewing.[13]

When Not Available
By function of s. 776, no writs of certiorari are available where an appeal ins 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.


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A superior court has no jurisdiction to review a decision of another superior court judge.[14]

  1. ↑ Patterson v The Queen (1970), 2 CCC (2d) 227, 1970 CanLII 180 (SCC), [1970] SCR 409, citing Lord Sumner in R v Nat Bell Liquors, Ltd. (1922), 47 CCC 129 (P.C.):
    That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.
  2. ↑ Re Madden, et al. v The Queen (1977), 35 CCC (2d) 381 (Ont. H.C.J.)(*no CanLII links)
  3. ↑ R v Russell, 2001 SCC 53 (CanLII), [2001] 2 SCR 804 at para 19
  4. ↑ Russell
  5. ↑ R v Deschamplain, 2004 SCC 76 (CanLII), at para 37
  6. ↑ R v Deschamplain, at para 17
    Russell at para 19
  7. ↑ R v Lee, 2014 ONSC 2471 (CanLII), at para 9
    Deschamplain at para 18
  8. ↑ R v Faulkner, 2013 ONSC 1824 (CanLII) at para 5
    R v Papadopoulos 2005 CanLII 8662 (ON CA), (2005), 201 CCC (3d) 363 at para 20 (Ont. C.A.)
  9. ↑ Faulkner, supra at para 4, 6
  10. ↑ R v MacDonald, 2007 NSSC 255 (CanLII)
  11. ↑ R v Innocente, 2004 NSCA 18 (CanLII) ("The role of the reviewing judge on an application for certiorari is thus substantially different from that of a judge on appeal. It is only when the judge whose decision is being reviewed has acted in excess of his or her jurisdiction or has breached the principles of natural justice that certiorari will be granted.")
  12. ↑ R v Brown, 2012 ONSC 6565 (CanLII)
  13. ↑ R v Eckstein, 2012 MBCA 96 (CanLII), 293 C.C.C. (3d) 292 at para 9
    R v Catellier, 2016 MBQB 190 (CanLII) at para 3
    R v Karpenko, 2005 MBQB 40 (CanLII) at para 11
  14. ↑ Dagenais v CBC, [1994] 3 SCR 835, 1994 CanLII 39 (SCC), at p.865 (...certoriari does not lie against a decision of a superior court judge.")

Jurisdictional Errors

Any failure on the part of the judge to "observe mandatory provisions of the Criminal Code" will result in a loss of jurisdiction.[1]

Deciding an issue reserved only for a different forum is also jurisdictional error.[2]

There is a difference between errors of law and errors of jurisdiction. The distinction is on the process followed by the judge.[3]

  1. ↑ Patterson v R., 1970 CanLII 180 (SCC), [1970] SCR 409
  2. ↑ Dubois v The Queen, 1986 CanLII 60 (SCC), [1986] 1 SCR 366
    R v Whynot, 1994 CanLII 4130 (NS CA), (1994) 129 NSR (2d) 347 at para 13 citing Dubois: ("In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does.")
  3. ↑ R v Duncan, 2004 CanLII 45468 (ON SC) at para 19

Specific Examples

In practice, certiorari can be used to review search warrants [1], orders of committal to stand trial[2], and quashing subpoenas.[3]

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[4]
  • a preliminary inquiry judge committing an accused to stand trial based on inferences that cannot be reasonably drawn.[5]
  1. ↑ e.g. Cohen c. Quebec (Attorney General), 2012 QCCS 4715 (CanLII)
    R v Firth, 1987 CanLII 3546 (AB QB)
  2. ↑ e.g. R v Brown
  3. ↑ R v Ellis, 2012 NSSC 329 (CanLII)
  4. ↑ R v Sazant, 2004 SCC 77 (CanLII)
    R v Deschamplain, 2004 SCC 76 (CanLII)
  5. ↑ R v Brown, 2012 ONSC 6565 (CanLII) at para 21
    R v Sheardown, 2010 ONSC 4235 (CanLII), at para 21 ("To commit an accused on such a basis constitutes jurisdictional error as there is no evidence from which the inference or inferences reasonably can be drawn and thus, there would be an absence of evidence on an essential element of the charge.")

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).[1]

  1. ↑ R v Zevallos, 1987 CanLII 169 (ON CA)

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".[1]

  1. ↑ R v Harris 1994 CanLII 2986 (ON CA), (1994), 93 CCC (3d) 478 (Ont. C.A.)

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.[1] This can include quashing of an order of committal or an order of discharge.[2]

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.[3] However, if the judge "preferred an inference favourable to an accused to an inference, also availed on the evidence, favourable to the Crown."[4]

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.[5]

It will be an error of jurisdiction where tthe preliminary judge "failed to test the evidence adduced at the inquiry against the essential elements of the offence".[6] This also requires that the elements considered must be the correct ones.[7]

The consideration of irrelevant factors in committal may result in a loss of jurisdiction.[8]

  1. ↑ Skogman v The Queen, 1984 CanLII 22 (SCC), [1984] 2 SCR 93 at p.167
  2. ↑ R v Kamermans, 2016 ONCA 117 (CanLII) at para 13
  3. ↑ Surette v Prince, 1999 CanLII 1929 (NS SC)
  4. ↑ Kamermans at para 15
    Sazant at para 25
  5. ↑ R v Nichols, 2005 CanLII 26602 (ON SC) at paras 38 to 40 citing Skogman at p.173
  6. ↑ Kamermans at para 14
    R v Sazant, [2004] 3 SCR 635, 2004 SCC 77 (CanLII), at para 25
  7. ↑ Kamermans at para 14
    Sazant at para 28
  8. ↑ R v Dubois, 1986 CanLII 60 (SCC), [1986] 1 SCR 366, (1986) 25 CCC (3d) 221 (SCC)

General Principles of Prohibition

An order of prohibition is a common law "prerogative writ" power of a superior court to order a lower court or government agent from prohibiting the performance of certain duties.[1]

A Court granting the order will "prevent [inferior judicial body] from exercising a jurisdiction it is not legally entitled to."[2]

  1. ↑ R v M.P.S., 2013 BCSC 525 (CanLII) ("It is the means whereby the inferior tribunal is prevented from exceeding its jurisdictional limits.") at para 16
  2. ↑ MPS, ibid. at para 16

General Principles of Habeas Corpus

Court Authority to Order Recognizance on Writ Application

General order for security by recognizance
779 (1) A court that has authority to quash a conviction, order or other proceeding on certiorari may prescribe by general order that no motion to quash any such conviction, order or other proceeding removed to the court by certiorari shall be heard unless the defendant has entered into a recognizance with one or more sufficient sureties, before one or more justices of the territorial division in which the conviction or order was made or before a judge or other officer, or has made a deposit to be prescribed with a condition that the defendant will prosecute the writ of certiorari at his own expense, without wilful delay, and, if ordered, will pay to the person in whose favour the conviction, order or other proceeding is affirmed his full costs and charges to be taxed according to the practice of the court where the conviction, order or proceeding is affirmed.
Provisions of Part XXV
(2) The provisions of Part XXV [Effect and Enforcement of Recognizances] relating to forfeiture of recognizances apply to a recognizance entered into under this section.
R.S., c. C-34, s. 713.
[Annotation added]


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Exemption From Certiorari and Habeas Corpus

Want of proof of order in council
781 (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given

(a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the lieutenant governor in council under an Act of the legislature of the province; or
(c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.

Judicial notice
(2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.
R.S., c. C-34, s. 715.


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Defect in form
782 No warrant of committal shall, on certiorari or habeas corpus, be held to be void by reason only of any defect therein, where

(a) it is alleged in the warrant that the defendant was convicted; and
(b) there is a valid conviction to sustain the warrant.

R.S., c. C-34, s. 716.


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Other Forms of Judicial Review

There are several other types of judicial review in the Criminal Code for certain circumstances:

  • s. 745.6 permits judicial review of an order of parole ineligibility
  • s. 83.05 permits judicial review of an order of Governor in Council who includes an organization on a list of terrorist entities
  • Part XXI.1 permits Ministerial Review

Consequences of Dismissing an Application

Effect of order dismissing application to quash
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.
R.S., c. C-34, s. 714.


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Consequences of Granting an Application to Quash

No action against official when conviction, etc., quashed
783 Where an application is made to quash a conviction, order or other proceeding made or held by a provincial court judge acting under Part XIX or a justice on the ground that he exceeded his jurisdiction, the court to which or the judge to whom the application is made may, in quashing the conviction, order or other proceeding, order that no civil proceedings shall be taken against the justice or provincial court judge or against any officer who acted under the conviction, order or other proceeding or under any warrant issued to enforce it.
R.S., 1985, c. C-46, s. 783; R.S., 1985, c. 27 (1st Supp.), s. 203.


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Appeal from Judicial Review

Case Digests

See Also

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