On the 26th of October, 2018 the Supreme Court of Canada issued their judgement in R v Awashish. For those unfamiliar, R v Awashish is a seemingly simple case in which Awashish was charged with operating a vehicle while impaired and being over 80. The issue the Supreme Court heard was not whether Awashish committed the offences though, it was whether the Crown could use the writ of certiorari based on error of law. The short answer is no.
Certiorari is Latin for ‘to be informed’ and is a writ which allows for “a superior court judge being vested with the authority and the jurisdiction to conduct the inquiry” or review into the proceedings or judgement of a lower court.1 Certiorari “arising out of criminal matters are criminal in nature, and are thus governed by the Criminal Code” and allows for “the superior courts of criminal jurisdiction and every court of appeal in each province as well as specified provincial courts to make rules of court which are not inconsistent with the provisions of the Code” and “to regulate in criminal matters the pleading, practice, and procedure with respect to certiorari, as well as to mandamus, prohibition, procedendo, and habeas corpus”.2
In R v Awashish, Ms. Awashish “applied for disclosure of more records relating to, inter alia: the breathalyzer device, the technician, the simulators used to calibrate the device, and the standard solution used for calibration”.3 The trial judge, Paradis J.C.Q., ordered it to be disclosed but the Superior Court granted the certiorari and sent it back to the lower court. Ms. Awashish and the other accused brought a McNeil application “seeking information regarding the existence and relevance of the records in question, as well as who had possession of them”.4
The Crown then attempted to argue that the documents were irrelevant, despite the accused’s intentions to use the documents for a further disclosure application. Paradis J.C.Q. ordered the Crown to inform Ms. Awashish about the existence of the documents, who possessed them and if the documents were subject to privilege.5 The Crown then attempted to quash this order.
The Superior Court allowed the quashing arguing that “by ignoring a ruling of a superior court relating to essentially the same issue, Paradis J.C.Q. failed to give effect to the doctrine of res judicata 6 and she acted in excess of jurisdiction.”7 Unsurprisingly, this was appealed. The Quebec Court of Appeal’s Thibault J.A. explained certiorari was available “to an accused where a judge acts without jurisdiction and, in certain circumstances, when a judge makes an error of law on the face of the record” but not when a judge erred regarding disclosure. While this is available to the accused, it is also a potential option for the Crown and for third parties “where there would be irreparable harm to fundamental rights of one of the parties” as appeals are not available to them.8
The final battleground over certiorari was in the Supreme Court of Canada. The SCC outlined the uses of certiorari and then clarified whether “certiorari is available where a party alleges an error of law on the face of the record, in particular in an evidentiary ruling”.9 In their decision, the court compared different jurisdictional decisions regarding certiorari and ultimately decided that “permitting parties access to certiorari review for an error of law — even one that "immediately and finally disposes of a legal right" — risks fragmenting criminal trials, thereby introducing inefficiency, delay, and the determination of issues on an incomplete record”.10 Thus, this case is significant as it will limit the future use of certiorari.
The court summarized that “certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge” and that for third parties “certiorari is available to review jurisdictional errors as well as errors on the face of the record relating to a decision of a final and conclusive character vis-à-vis the third party”.11 An example given by the SCC of this was challenging “a publication ban that unjustifiably limits rights protected by the Canadian Charter of Rights and Freedoms”12 The final decision was that since the Crown was not using certiorari for the reason of a jurisdictional error but rather an error of the law it was inapplicable.
An important note about this particular judgement is that it coincided with the ruling in R v Gubbins which ruled that the “[breathalyzer maintenance] records are subject to third party (rather than first party) disclosure”13 To obtain third part disclosure, “an accused must make a court application”.14 Furthermore, “the burden is on the accused to show that the record is "likely relevant"” and “where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused”.15 This is relevant in R v Awashish as, while Ms. Awashish may have prevented the Crown’s use of certiorari, she will still have to obtain the desired documents as a third party disclosure which is harder. The difficulty that arose from R v Gubbins was that it indicated that breathalyzer maintenance records are not obviously relevant nor even likely relevant.16 Therefore, if Ms. Awashish continues attempting to obtain the maintenance records, her application will potentially fail unless she can provide “persuasive evidence that maintenance records are "likely relevant"” 17 which will probably require expert evidence (and therefore more money).
1 CED Prerogative Remedies III.1.(a) Prerogative Remedies | III — Certiorari | 1 — Introduction | (a) — Historical
2 CED Prerogative Remedies III.2.(b) Prerogative Remedies | III — Certiorari | 2 — Proceedings Subject to Review | (b) — Criminal
3 R v Awashish 2018 SCC 45 para 3
4 R v Awashish para 4
5 R v Awashish para 5
6 See CED Criminal Law – Defences V.6.(a) Res judicata: something that has clearly been decided. It is a doctrine that strives to achieve the following: that a person not be put in jeopardy once again after an acquittal (autrefois acquit); that a person not be punished twice for the same conduct (autrefois convict and the Kienapple principle); that matters that have been fully litigated between parties not be reopened, over and over; and that the scandal of conflicting decisions be avoided.
7 Para. 7
8 Para 8
9 Para 13
10 Para 17
11 Para 20
12 Para 12
13 R v Gubbins 2018 SCC 44 para 2
14 R v Gubbins para 25
15 R v Gubbins para 25. O’Connor is the case which established this as precedent.
16 R v Gubbins para 54
17 Para 57