Certiorari and Committals for Trial
![handle is hein.journals/clwqrty23 and id is 385 raw text is: Certiorari and Committals for Trial
Peter J. Connelly*
Introduction
There has been a significant movement in recent years to
expunge many of the technical elements from the field of
criminal procedure. The most tangible evidence of this trend is
evident in a triad of decisions of the Supreme Court of Canada
commencing with Re Martin, Simard and Desjardins and The
Queen1 and culminating in Forsythe v. The Queen.2
It is widely accepted that these decisions have finally settled
the issue of the proper test to be applied by a superior court
judge on an application in the nature of certiorari3 to quash a
committal for trial pursuant to s. 475(1) of the Criminal Code.
In each of these cases the court has emphasized that
certiorari will only lie to quash a committal for trial where the
justice has exceeded his jurisdiction.4
This rather concrete and seemingly uncomplicated test
would seem to be a simple enough guideline for a reviewing
judge to apply with a minimum of confusion. A survey of the
case law of the superior courts of various provinces, however,
* Of the firm Burritt, Grace and Neville, Ottawa.
1(1978), 41 C.C.C. (2d) 342, 87 D.L.R. (3d) 704, [197812 S.C.R. 511,20N.R. 373.
2(1980), 53 C.C.C. (2d) 225, 15 C.R. (3d) 280, 112 D.L.R. (3d) 385, 32 N.R. 520
(S.C.C.). The other judgment is, of course, A. -G. Que. v. Cohen (1979), 46 C.C.C.
(2d) 473, 13 C.R. (3d) 36,97 D.L.R. (3d) 193, [1979] 2 S.C.R. 305,27 N.R. 344.
3 For a discussion of the prerogative writs in general, see G. lUtourneau, The Prerog-
ative Writs in Canadian Criminal Law and Procedure (Toronto, Butterworths, 1976).
4 It is arguable that Cohen, supra, reposes in the superior court judges a discretion to
quash a committal for trial for error of law on the face of the record if the error is
fundamental to the decisions to commit. For the sake of completeness it should be
noted that in Ontario, habeas corpus with certiorari in aid may yet be available
pursuant to the pre-Confederation statute An Act for more effectually securing the
Liberty of the Subject, S.C. 1866, c. 45, to remedy a non-jurisdictional error of law
on the face of the record: R. v. Pickett (1975), 28 C.C.C. (2d) 297, 31 C.R.N.S. 239
(Ont. C.A.). See also Re Robar and The Queen, (1978), 42 C.C.C. 133, 27 N.S.R.
(2d) 459 (S.C. App. Div.), which deals with similar Nova Scotia legislation. On juris-
diction see A. Rubenstein, Jurisdiction and Illegality (Oxford, Clarendon Press,
1965).
369
13-23 C.L.Q.](ViewImageLocal?handle=hein.journals/clwqrty23&div=32&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Certiorari and Committals for Trial
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most