Supreme Court

Criminal Law

Extraordinary remedies


Certiorari in criminal proceedings should not be available to parties to correct errors of law

At request of accused, charged with impaired driving, Crown was ordered to disclose information relating to breathalyzer test. Crown applied for certiorari on basis that relevance of records sought had not been established and order was quashed. Accused brought second motion and second order was granted. Crown challenged that decision, alleging that motion judge had failed to give effect to doctrine of res judicata and accused appealed. Court of Appeal held that certiorari should not have been granted here as motion judge had acted within her jurisdiction and Crown appealed. Appeal dismissed. Certiorari in criminal proceedings should not be available to parties to correct errors of law. Certiorari should be available to parties only for jurisdictional error by provincial court judge. Failure to give effect to res judicata is not jurisdictional issue, it is legal error. Therefore, in absence of jurisdictional error, Crown’s appeal should fail, as certiorari was unavailable.

R. v. Awashish (2018), 2018 CarswellQue 9200, 2018 CarswellQue 9201, 2018 SCC 45, 2018 CSC 45, Wgner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2016), 2016 CarswellQue 6306, 2016 QCCA 1164, Bouchard J.C.A., Thibault J.C.A., and Gagnon J.C.A. (C.A. Que.).

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