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Wednesday, April 04, 2012

The Scope of Judicial Review in Criminal Matters

R. v. Fraser, 2009 NBQB 291 (CanLII)
The Scope of Judicial Review in Criminal Matters
i)  Generally
[14]   The availability of judicial review to correct perceived legal or procedural errors in criminal proceedings is substantially different than that to be applied in other types of legal proceedings. In those latter types of proceedings: a) correctness, or b) reasonableness are the guiding principles of the reviewing process. Dunsmuir v. New Brunswick 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190 (S.C.C.); Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 (CanLII), [2009] 1 S.C.R. 339 (S.C.C.).

[15]   In criminal proceedings the review process is restricted to those instances in which the judge acted in excess of his or her jurisdiction, has breached the principles of fundamental justice or denied procedural fairness. R. v. Russell 2001 SCC 53 (CanLII), [2001] 2 S.C.R. 804 (S.C.C.) at paragraph 19.

[16]   In the “pre-Dunsmuir” decision of Chapelstone Developments Ltd. V. R. [2004] N.B.J. No. 450 (N.B.C.A.) those differences were described at paragraph 14 by Robertson J.A.:

One must be careful not to transpose the administrative concept of jurisdictional error to the criminal context. In the administrative context, a loss of jurisdiction can arise where the decision is found to be in error, patently unreasonable or simply unreasonable, depending on the applicable review standard. But this is not true of judicial review in the criminal context. Generally, errors on the face of the record, or mere errors of law, do not warrant the granting of prerogative relief: R. v. D.(V.) 1999 CanLII 9315 (ON CA), (1999), 141 C.C.C. (3d) 541 at para. 36 (Ont. C.A.). In brief, the correctness or reasonableness of the decision is not generally a ground on which to claim jurisdictional error when seeking judicial review of pre-trial motions in criminal cases.

[17]    There is further authority to the same effect that provides additional insight into those differences. In R. v. Skogman 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93 (S.C.C.) Estey J. set out the history and use of judicial review in criminal proceedings saying:

This calls into question the reach of the writ of certiorari as a tool for the review of committals for trial at preliminary hearings. In its earliest application by the courts, the prerogative or royal writs, including certiorari, were a mechanism whereby the Royal Courts of Justice maintained a surveillance over the conduct of the inferior tribunals of the land. Gradually, as the organization of justice and the judiciary developed, these review mechanisms were broadened in their reach and refined in the degree of control until, by 1878, certiorari was available not only for the review of jurisdictional transgressions by statutory tribunals, but also for errors committed by those tribunals in the course of the discharge of their assigned function, where such errors were apparent on the face of the record. See Williams J. in Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189. During this same epoch, there developed a parallel procedure by way of application to a court of general jurisdiction for the judicial control of non-statutory tribunals and emanations of the state which did not have the attributes of an inferior court. Limitations, as will be seen in Re King and Duveen, [1913] 2 K.B. 32, per Channell L.J., were gradually introduced whereby certiorari review was precluded in the case of a tribunal determining a question of law submitted to it for determination as the primary issue by the parties to the proceeding. Other refinements in this branch of the law have come and gone; for example, the concept of collateral issues whereby the doctrine of certiorari review was limited to calling into question in the court of general jurisdiction decisions made by the lesser tribunals which were a prelude to the exercise of the primary or principal jurisdiction of the body whose conduct was under review. We are no longer concerned with such matters: Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227.

     In the result, certiorari, or the newer term of judicial review, runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense. In the absence of a privative clause, the Court may also review for error of law on the face of the record. However, even then, under the most recent authorities, the error must assume a jurisdictional dimension. These authorities and the development and Darwin-like elimination of sub-doctrines are reviewed in Douglas Aircraft Company of Canada Ltd. v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, particularly at pp. 265-78. It is clear, however, that certiorari remains available to the courts for the review of the functioning of the preliminary hearing tribunal only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction (see Forsythe v. The Queen,1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268). It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached. (Emphasis added)

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