certiorariWhat is a certiorari in a criminal proceeding?

Certiorari by definition is a request to a court to challenge a legal decision.  A Certiorari to Quash Committal in Ontario, specifically, is a request to the Superior Court of Justice to reverse an order from the lower court that an accused must stand trial for his or her criminal charge(s).

In terms of the journey of an accused person to trial, this is where the Certiorari may arise:

  1. You are charged with a criminal offence.
  2. For certain (more serious charges), you have the option to hold a Preliminary Hearing before your trial.
  3. One of two things can happen at the end of your Preliminary Hearing: you are ordered (“committed”) to proceed to trial by the Preliminary Hearing judge, or you are “discharged” and your matter is complete: you do not even have to proceed to trial.  If you have more than one charge, you may be committed on one or more charge, but discharged of another or others.  You will only face those charges of which you were committed at your subsequent trial. Note:  There are other strategic advantages to having a Preliminary Hearing other than the prospect of a discharge; your lawyer will discuss these with you.
  4. If you are committed on one or more charges, your lawyer may advise that you bring a Certiorari to challenge the Preliminary Hearing judge’s decision to commit you.  The ideal result of this motion is that the reviewing judge agrees that you should not have been committed and quashes that decision.  You would then be done with these charges and not have to proceed to trial on those charges.
  5. If your Certiorari is unsuccessful, or committal of only some of your multiple charges are quashed, you proceed to trial.

A Certiorari to Quash Committal is an extraordinary remedy.  It is not a common part of the procedure.  That is, the vast majority of committals at Preliminary Hearing are not challenged in this way; the most common practice is to proceed to trial as normal.

One reason for this is that the standard of review is very high.  That is, a Certiorari is very difficult to win.

The Standard of Review in Quashing Committal for Trial

For a reviewing judge to quash a committal, he or she must find a jurisdictional error.  That is to say, the reviewing judge must find that the Preliminary Hearing judge exceeded his or her jurisdiction.  The Preliminary Hearing judge derives jurisdiction to commit or discharge from the Criminal Code.  It must be determined that the judge did something that the Code never gave them the authority to do.

In practical terms, this means that it is not enough for the reviewing judge to find that the decision to commit was wrong, or that the reviewing judge does not agree with the decision.

Very basically, the Preliminary Judge is authorized to commit an accused to stand trial if he or she finds that at trial, a reasonable jury, properly instructed, could find the accused guilty based upon the evidence put forth at the Preliminary Hearing (R. v. Arcuri (2001), 157 C.C.C. (3d) 21 (S.C.C.) paras.22-23).  If there is direct evidence (for example, a witness at the Prelim testifies “I saw John Smith shoot the victim”), the job of the Prelim judge is easy: a jury could find guilt based on that evidence.  If there is only circumstantial evidence (for example, a witness testifies “I heard a bang, saw John Smith running from the scene and I know he really hated the victim”), the job is more difficult.  The Prelim judge is permitted to do a “limited weighing” of the evidence to determine whether or not the jury could find guilt.  Essentially, “I saw John Smith in Toronto that week” is circumstantial evidence, but not enough on which a jury could base a finding of guilt.  The more robust evidence outlines above – the bang, the running, the motive – those are more likely to be enough to commit.  The Preliminary Hearing judge must assess the quality of the inference: is the evidence presented enough to reasonably infer that John Smith shot the victim?

So, back to the Certiorari, what would it take for a Preliminary Hearing judge’s decision to be reversed?  It is not enough to find that the inference was incorrect.  That is, the reviewing judge cannot simply say “don’t think a jury could convict based on that evidence, I think that is a bit of a stretch”.  Committal despite total lack of evidence as to one essential element of the offence would indeed constitute jurisdictional error. But the case Re Skogman and The Queen (1984), 13 C.C.C. (3d) 161  says that if there is some evidence (a “scintilla” of it) on which the Preliminary Judge draws his or her inference, even if that inference does not seem to be quite enough, it is not “jurisdictional error” available for review on a Certiorari.  The Prelim judge cannot decide if the evidence is enough, he or she must leave it to the jury to decide, so long as a reasonable jury might find guilt.  And the Certiorari judge cannot quash the committal just because he or she disagrees with the Prelim judge’s assessment.  There must be a jurisdictional error.

“Beyond a Reasonable Doubt” is a necessary, albeit limited, consideration

However, there is more recent caselaw establishing that the evidence on which the jury is basing its decision must be considered in light of the “beyond a reasonable doubt” standard of proof.

[See: R. v. Charemski (1998), 15 C.R. (5th) 1 (S.C.C.) and R. v. Turner (2012), 292 C.C.C. (3d) 69 (O.C.A.)].  Which is to say that the Preliminary Judge must think about what it would actually take for a jury to return a finding of guilt.

So, for our purposes, we now have an argument against the “scintilla of evidence” crutch on which the Preliminary Hearing judge once might have relied.  Your lawyer can argue that even if there is evidence (“John Smith was in Toronto that week”) is not actually evidence on which any reasonable jury could find guilty beyond a reasonable doubt, that this represents jurisdictional error on the part of the Preliminary Hearing judge.

As you can see, this is not a simple or straightforward issue.  And frankly the level of analysis above is an oversimplification of only one element of what might constitute a strong argument on Certiorari.  The “reasonable doubt” argument is but one example of a path to the necessary “jurisdiction error” standard of review.

The aim of this blog was simply to introduce the basics of the Certiorari to Quash Committal motion and establish why it is considered an extraordinary remedy: because it is very difficult to succeed on such a motion.

Nonetheless, it is always important for any accused person to know all of their rights and what options are available to them in defence of their criminal charges.  This discussion also underscores the importance of having legal representation. It is never as simple as coming to court on Day One, pleading “guilty” or “not guilty” and hoping for the best.  There are legal structures in place to ensure justice is done for any accused.  You just need somebody who knows how to help you navigate them.

If you would like to discuss this topic further or need legal representation for any criminal offence, please do not hesitate to contact me or anybody here at ROBICHAUD’S.

Know your rights so you can stand up for them.

Jordan Gold, Associate Lawyer

Jordan Gold, Associate
Barrister & Solicitor

Jordan Gold
Barrister and Solicitor



About the Author: