 |
| Patrick Ducharme |
Decisions on the reasonableness of subsection 740 (8) notice or subsection 740 (7) decisions on credible or trustworthy evidence are not appealable. They are also not easily reviewable by way of extraordinary remedy. Challenges to an order of committal, or, alleged jurisdictional errors related to the evidence taken at a preliminary hearing are limited to relief sought by way of certiorari, mandamus or prohibition. The scope of these extraordinary remedies is very limited. They require proof of jurisdictional error.
A Superior Court Justice is not permitted to override the decision of a Justice at a preliminary inquiry merely because the Justice committed an error of law or reached a conclusion different from that which the reviewing court would have reached.1 Instead, a review by extraordinary remedy, can only find success if it demonstrates the Justice at the preliminary inquiry acted in excess of its assigned statutory jurisdiction or in breach of the principles of natural Justice.
Decisions on the reasonableness of notice, or, whether the evidence is, in fact, credible or trustworthy, do not generally fit the present-day interpretation of jurisdictional error. One of the central purposes of the preliminary inquiry is to ensure that the accused is not committed to trial unnecessarily.3 A Justice presiding at a preliminary inquiry performs a gatekeeper function. The test by which a preliminary inquiry Justice determines whether an accused should be required to face trial is based on sufficiency of evidence.
Sufficiency is defined as: whether the evidence taken at the preliminary inquiry is sufficient to permit a properly instructed jury acting reasonably to reach a verdict of guilt.5 Unless the evidence at the preliminary inquiry establishes that the Justice’s decision on sufficiency of evidence was a decision in excess of her jurisdiction or a breach of the principles of natural Justice, the decision will be unassailable on review by way of extraordinary remedy. Jurisdictional error requires proof that the presiding Justice failed to apply the proper test of sufficiency or breached the principles of natural Justice.
Section 784 provides that 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. The right of appeal is automatic. However, the accused does not have an automatic right to a stay of trial proceedings pending a decision by the appeal court.
The power to grant a stay is discretionary, the test being whether the accused can show the existence of a serious question of law, irreparable harm to the accused unless a stay is granted, and, that the balance of convenience favours granting a stay.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel