In two recent decisions from the Supreme Court of Canada (“SCC” or “the Court”), R v Awashish, 2018 SCC 45 [“Awashish”] and R v Gubbins, 2018 SCC 44, the SCC addressed issues of criminal procedure in the context of impaired driving proceedings.? In Awashish, the issue was whether remedies through certiorari are available for interlocutory proceedings in a criminal proceeding.? The Court clarified that in the interest of the administration of the criminal justice system, certiorari is not a remedy that is available against an interlocutory judgement, even in cases where there has been an error of law in such a judgement. Unfortunately, preventing certiorari when a trial judge has made an error of law might not actually reduce the length or cost of proceedings. This critique is explored in the following post.
Certiorari is a common law remedy granting higher courts the prerogative to order a lower court to correct errors. It is generally used to correct jurisdictional errors, but can be used in other contexts, most commonly in the area of administrative law.? In the criminal context, certiorari can be sought to overrule a court’s decision in an interlocutory – or intermediary – proceeding.
In?R v Awashish, Ms. Awashish was charged with impaired driving and driving with a blood-alcohol content of over 80mg of alcohol per 100 mL of blood (more commonly referred to as driving “over 80”).? During the proceedings, Ms. Awashish sought a judicial order that the Crown disclose materials about the breathalyzer machine, including maintenance instructions and training information on how to use the machine.? The trial judge at the Superior Court of Quebec granted the order requiring the Crown to disclose the requested information. The Crown then sought certiorari from the Superior Court to quash the order from the trial judge, as granting certiorari?would have the effect of dismissing the order to disclose the requested information about the breathalyzer machine. The Crown argued before the Superior Court that because Ms. Awashish did not establish the existence or the relevance of the third-party records, the trial judge had erred in law in granting the disclosure order. The Superior Court agreed and granted certiorari.
The decision was appealed to the Quebec Court of Appeal (“the QCCA”) which set aside the order for certiorari on the grounds that certiorari is only available where there are jurisdictional issues and (in very limited circumstances) where there are errors of law.? However, when third parties are involved, those parties have better grounds for being awarded certiorari because their procedural rights to appeal are otherwise limited.? Here, although there was an error of law, the QCCA denied certiorari because the error did not fit into this limited set of allowable circumstances.
The Supreme Court Decision
The SCC ultimately held that certiorari is not permitted in interlocutory matters in criminal proceedings unless the provincial court has made a jurisdictional error.? In cases where the provincial court makes an error in law, certiorari is not available. Governing the Court’s reasoning was the concern that in allowing certiorari in interlocutory criminal proceedings, the proceedings themselves will become fragmented.? In turn, fragmenting the proceeding would deny courts the opportunity to make decisions on cases without the benefit of the full evidentiary record.? Appeals of interlocutory proceedings are already limited in criminal contexts for this very reason, as there is a risk of unnecessarily delaying proceedings and arguing cases on their merits before the full evidentiary record has been established. Furthermore, when certiorari is granted or motioned for during a criminal proceeding, there is the potential for the case to become argued in both the provincial and superior courts. This causes confusion and a lack of “principled distinction” (para 19) between the roles of the respective courts with regard to the case at hand.
Finally, the SCC expressed concern that the use of certiorari would cause inefficiencies and delays in the criminal proceedings, inefficiencies that could impact the rights of the accused to receive a trial without reasonable delay.? The SCC took a stronger position against the use of certiorari than the QCCA, and denied that certiorari can be granted even when there has been an error in law. Justice Rowe mentioned the Court’s landmark decision on the timely administration of justice in R v Jordan, 2016 SCC 27 [Jordan] as an important reason why certiorari should not be granted, even when an error of law made by the provincial court “immediately and finally disposes of a legal right” (para 17) of either party in the proceeding (such as the right of an accused person to access disclosure from the Crown). The fact that interlocutory appeals are prohibited in criminal proceeding reflects the Court’s preference for limiting delays. Restricting access to appeals also ensures that decisions are not made on cases before the full evidentiary record has been submitted.? If courts are permitted to grant certiorari on interlocutory matters in a criminal proceeding, then certiorari will assume an appeal function, interfering with interlocutory orders and undermining policies in favour of efficient proceedings.
In applying the law to the case at hand, the SCC acknowledged that the trial judge made an error of law, yet went on to deny the use of certiorari. Despite Ms. Awashish’s failure to establish the relevance of such evidence, the trial judge ordered to Crown to disclose information held by a third party about breathalyzer machine maintenance. Although there was an error of law, the trial judge was acting within their jurisdiction, and hence?certiorari could not be granted in this instance.
Although both interlocutory appeals and certiorari are prohibited in criminal proceedings, parties are not without remedy, as criminal decisions can be appealed. However, restricting the availability of remedies to appeal will not necessarily shorten or make the criminal process more efficient in any substantial way. Instead, the entire case has to be completed and a decision rendered before an appeal can be sought.? In such an event, the length and cost of the proceeding increases for both the Crown and the accused. While a particular burden is placed on a person who is appealing their conviction, appeals also tax the Crown operating under the time constraints imposed by Jordan.
Although in this case the Crown was seeking certiorari against an order to provide disclosure, it is certainly conceivable that a trial judge might make an order that would work against the accused.? But according to the SCC, the accused would not be able to apply for certiorari against the interlocutory order, and would have to seek relief by appealing their conviction if they felt the error in law effected the outcome of the case. In these circumstances, it does not seem to be more efficient to prevent an accused person from seeking certiorari against an erroneous order. Nor is it in the public interest to restrict the Crown from seeking certiorari against an order made on the basis of an error in law, especially if that error is one that interferes with the fairness of the proceedings.? Certiorari might increase the lengths of proceedings at the trial level, but if the error in law made by the trial judge cannot be addressed as it arises, the alternative is that both parties must continue the proceedings and potentially appeal the decision on the basis of the error in law.
While certiorari may delay criminal proceedings, prohibiting the granting of certiorari prevents the opportunity for parties to seek relief against orders made that interfere with the rights of individuals and the fairness of proceedings.? Although relief is available upon appeal when there is an error of law made by the trial judge, it raises the issue of whether the decision to prohibit certiorari will actually reduce the length and cost of proceedings.? Even though the interlocutory proceedings have the impact of lengthening criminal proceedings, one has to question the impact that this decision may have on the perception of the criminal justice system when interlocutory relief cannot be granted against errors of law.