Dubois v. The Queen, [1986] 1 S.C.R. 366

George Joseph Dubois Appellant;

and

Her Majesty The Queen Respondent.

File No.: 17513.

1985: March 14; 1986: April 24.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Preliminary inquiry ‑‑ Procedure ‑‑ Preliminary hearing judge concluding that evidence not establishing identity of accused beyond reasonable doubt ‑‑ Order endorsed "dismissed" ‑‑ Whether certiorari available to quash preliminary inquiry decision ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 475.

Prerogative writs ‑‑ Certiorari ‑‑ Preliminary inquiry ‑‑ Preliminary hearing judge concluding that evidence not establishing identity of accused beyond reasonable doubt ‑‑ Order endorsed "dismissed" ‑‑ Whether certiorari available to effect review of preliminary inquiry decision.

Appellant faced a charge of robbery and of unlawful use of a firearm while committing an indictable offence. The preliminary hearing judge ruled that he had to be satisfied beyond a reasonable doubt that there was some positive identification and found that the accused was not positively identified as the person who committed the crime. There was no indication that the preliminary inquiry judge addressed his mind to whether the evidence adduced at the preliminary hearing could convince a reasonable jury of guilt. The respondent Crown applied to the Court of Queen's Bench of Manitoba by way of originating notice of motion for an order of certiorari to quash the decision of the preliminary hearing judge and to return the matter to the Provincial Court for processing under s. 475 of the Code. The application was dismissed but the Court of Appeal overturned that decision on appeal. The main points in issue were: (1) whether on the Crown's application certiorari was available to correct errors on the face of the record or whether it was only available to correct errors of jurisdiction; (2) if certiorari only applied to errors of jurisdiction, was it a jurisdictional error to apply the wrong standard of proof in determining whether there was "sufficient evidence" of guilt to commit an accused person for trial; (3) if certiorari lay to correct the error here, should the remedy be withheld because the Crown had other remedies available which had not been exhausted.

Held: The appeal should be dismissed.

It is settled that in a review of a committal for trial the only ground for action by the reviewing court is lack of jurisdiction. The same principle applies where certiorari is sought to review a discharge. A preliminary hearing is not intended to determine innocence or guilt but only whether the evidence is sufficient to warrant the accused's standing trial. It is therefore inappropriate to allow supervisory remedies exercised in proceedings to quash a committal to be expanded to correct errors of law relating to matters such as admissibility and production. Errors going to the jurisdiction of the preliminary hearing judge, however, are different. Superior courts have always exercised their inherent authority to ensure that the lower courts fully exercise their powers without exceeding their jurisdiction. Both parties to the preliminary hearing are subject to the same obligations and enjoy the same rights under the jurisdictional test.

Jurisdictional error is committed where "mandatory provisions" of the Criminal Code are not followed, and in the context of s. 475, there must be at least some basis in the evidence proferred for the justice's decision to commit. Where there is some evidence, it is clearly within the justice's jurisdiction to come to a decision as to whether the evidence is of sufficient weight to commit. Jurisdictional error is not committed by an incorrect ruling on admissibility at the preliminary hearing unless it should affect the right to cross‑examine or to call witnesses to the extent that natural justice is violated.

Jurisdictional error was present here. The preliminary inquiry judge's decision to not commit appellant to trial, because the evidence did not identify him beyond a reasonable doubt, was acting in excess of his jurisdiction under the mandate issued by Parliament in s. 475. The reviewable error did not lie in the adoption of a mistated test, but in the exercise of a function reserved by Parliament to another forum.

Cases Cited

United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; Patterson v. The Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409, considered; R. v. Hubbard, 1975 CanLII 1580 (BC SC), [1976] 3 W.W.R. 152; Re Mitchell and Maynes and The Queen (1976), 1976 CanLII 321 (AB SCTD), 31 C.C.C. (2d) 344; R. (Hanna) v. Ministry of Health and Local Government, [1966] N.I. 52, distinguished; Attorney General (Que.) v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305; Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268; Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93; R. v. Nat Bell Liquors, Ltd., 1922 CanLII 488 (UK JCPC), [1922] 2 A.C. 128; R. v. Northumberland Compensation Appeal Tribunal. Ex parte Shaw, [1952] 1 K.B. 338; Alberta Board of Industrial Relations v. Stedelbauer Chevrolet Oldsmobile Ltd., 1968 CanLII 55 (SCC), [1969] S.C.R. 137; Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597; R. v. Norgren (1975), 1975 CanLII 1453 (BC CA), 27 C.C.C. (2d) 488; Re Nicols and The Queen, reported with Re Martin, Simard and Desjardins and The Queen (1977), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 455; Re Poirier and The Queen (1981), 1981 CanLII 3236 (QC CA), 62 C.C.C. (2d) 452; Re Robar and The Queen (1978), 1978 CanLII 2407 (NS CA), 42 C.C.C. (2d) 133; Petersen v. The Queen, 1982 CanLII 200 (SCC), [1982] 2 S.C.R. 493; R. v. Riddle, 1979 CanLII 1601 (SCC), [1980] 1 S.C.R. 380; Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, referred to.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 475(1).

Authors Cited

Reid, Robert F. and Hillel David. Administrative Law and Practice, 2nd ed., Toronto, Butterworths, 1978.

De Smith, S.A. De Smith’s Judicial Review of Administrative Action, 4th ed., by J. M. Evans, London, Stevens & Sons, 1980.

APPEAL from a judgment of the Manitoba Court of Appeal (1982), 1982 CanLII 3793 (MB CA), 2 C.C.C. (3d) 77, 31 C.R. (3d) 117, 18 Man.R. (2d) 90, [1983] 1 W.W.R. 97, allowing an appeal from the decision of Wright J. refusing an order on certiorari to quash a discharge ordered at a preliminary inquiry conducted by Nolan Prov. Ct. J. Appeal dismissed.

Michael T. Tracey and M. B. Nepon, for the appellant.

J. G. B. Dangerfield, Q.C., for the respondent.

The judgment of the Court was delivered by

1. Estey J.‑‑This appeal brings before this Court once again the difficult and long‑discussed question as to when certiorari is available to quash the decision of a Provincial Court Judge sitting in preliminary hearing under s. 475 of the Criminal Code. The appellant faced a charge of robbery and of unlawful use of a firearm while committing an indictable offence. In disposing of the matter, the learned preliminary hearing judge said:

...I have to be satisfied, beyond a reasonable doubt, that there has been some positive identification.... There is a reasonable doubt in my mind as to identification and I am not at liberty to infer from the surrounding circumstances that he was the person there, so on the question of identification I must hold that the accused was not positively identified as being the person who committed the offence....

This was clearly an error of law. Whether it goes beyond that to constitute a jurisdictional error is the crux of this appeal. Section 475(1) of the Criminal Code states:

475. (1) When all the evidence has been taken by the justice he shall,

(a) if in his opinion the evidence is sufficient to put the accused on trial,

(i) commit the accused for trial, or

(ii) order the accused, where it is a corporation, to stand trial in the court having criminal jurisdiction; or

(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.

2. The test to be employed under this section is to be found in the judgment of this Court in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, per Ritchie J. at p. 1080:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice" ... is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

In this case, there is no indication that Norton Prov. Ct. J. addressed his mind, as he was required to do, to the question whether the evidence adduced at the preliminary hearing could convince a reasonable jury of guilt.

3. The respondent Crown applied to the Court of Queen's Bench of Manitoba by way of originating notice of motion for an order of certiorari to quash the decision of the preliminary hearing judge and to return the matter to the Provincial Court for processing under s. 475 of the Code. Wright J., sitting in Chambers, dismissed the application. His decision was overturned on appeal to the Manitoba Court of Appeal (O'Sullivan J.A. dissenting).

4. The principal decisions of this Court on the application of judicial review to proceedings held under s. 475 have been directed to proceedings wherein the accused has been committed and the committal has been brought under challenge in judicial review. In those circumstances, certiorari lies only where the error goes to jurisdiction, and not in respect of a non‑jurisdictional error of law, even where the error appears on the face of the record: Patterson v. The Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409, Attorney General (Que.) v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305, Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93. The issue raised in this appeal is whether the same or some other limitation applies to the review of a discharge in contrast to a committal of an accused at preliminary hearing. Depending upon the answer to that question, there may arise the narrower question as to whether the reasonable doubt test applied by the learned magistrate here instead of the Shephard test, supra, deprived the Provincial Court Judge of jurisdiction or was merely an error of law committed within his jurisdiction, and hence not within the reach of judicial review. We are here concerned, of course, not with a proceeding which commenced without jurisdiction but rather with one in which there is an allegation that in the course of performing its statutory role, the tribunal acted in violation of its jurisdiction, either by exceeding or by declining to exercise it: see Forsythe, supra, per Laskin C.J. at pp. 271‑72.

5. At trial, Wright J. held that the error was jurisdictional, because "excess or absence of jurisdiction occurs if a wrong standard of proof is applied that has the effect of causing the judge to go further than the law permits, or to fail to go as far as the law permits". However, he denied certiorari because in his view, the applicant Crown had other remedies, such as the right to "start over again with a new charge, or to indict directly".

6. In the Manitoba Court of Appeal, Monnin J.A. (as he then was) held that certiorari lay despite the fact that the error in this case was merely an error of law not going to jurisdiction. Matas J.A. concluded that the availability of certiorari to quash the committal or discharge of an accused at a preliminary inquiry is limited to cases involving jurisdictional errors. In any case, he agreed with Wright J. and held that the error in this case was jurisdictional:

The presiding judge at a preliminary hearing is circumscribed by law in how he approaches his task of determining the sufficiency of evidence. The Sheppard [sic] test governs the exercise of his discretion. The test ... gives substance to the bare admonition in s. 475 of the Code requiring the judge to form an opinion on whether the evidence is sufficient; the test must form the substratum of the judge's opinion. If a judge applies the Sheppard [sic] test, he acts within his jurisdiction. The decision, right or wrong, will stand. A jurisdictional error will arise only if he makes an error in reliance on a test which is fundamentally wrong. (See Reid and David, Administrative Law and Practice, 2 ed., at pp. 206‑207, where it is said that with respect to civil proceedings, jurisdictional error exists when a tribunal disregards the basic principles on which its enabling legislation is based.)

7. O'Sullivan J.A. dissented. In his opinion, certiorari was only available in cases of jurisdictional error, and the error in this case was not of that sort. Rather, the misdirection as to the burden of proof was an error "made in the course of the exercise of a judicial jurisdiction bestowed on him as a court by Parliament.... He erred in directing himself as to what was a `sufficient case' but his error does not mean he failed to comply with the provision of the statute.... He did not ask the wrong question but answered the right question wrongly."

8. The points in issue framed by the appellant number six; however, they clearly resolve themselves into three. These are:

9. Is certiorari available in these circumstances to correct errors of law on the face of the record, or is it only available to correct errors of jurisdiction?

10. If the latter, is it a jurisdictional error to apply the wrong standard of proof in determining whether there is "sufficient evidence" of guilt to commit an accused person for trial?

11. If certiorari lies to correct the error in this case, should the remedy be withheld because the Crown has other remedies available which have not been exhausted?

12. The starting point in the analysis of the position of the preliminary hearing judge is found in the judgment of Judson J. in Patterson v. The Queen, supra, where he wrote at p. 411:

I intend to confine these reasons within the very narrow issues raised by the case and to repeat what has been emphasized so often that if it is sought to review a committal for trial, there is only one ground for action by the reviewing Court and that is lack of jurisdiction.

This was a certiorari proceeding in which it was asserted that the committing judge, by declining to order the production of a statement given by a Crown witness to the police, had thereby committed an error of law reviewable by certiorari. Although Spence J. dissented, he agreed that certiorari would not lie to correct errors "made by a magistrate in the performance of his duties" (p. 419). Judson J.'s statement of the law has been specifically confirmed in three subsequent decisions of this Court (Cohen, Forsythe and Skogman, supra) and must be taken as settled.

10. However, this case is in fact the converse of those four. Here, certiorari is sought not by the accused to challenge a committal, but by the Crown. Monnin J.A. (alone of the three judges in the Court of Appeal) did not believe that, in the absence of a "very clear and definite pronouncement from the Supreme Court", Patterson and the cases following it should be taken to have excluded all recourse to certiorari for error of law on the face of the record in the decision of a justice acting under s. 475, when review for error of law is in other contexts clearly available: R. v. Nat Bell Liquors, Ltd., 1922 CanLII 488 (UK JCPC), [1922] 2 A.C. 128 (P.C.), R. v. Northumberland Compensation Appeal Tribunal. Ex parte Shaw, [1952] 1 K.B. 338 (C.A.), Alberta Board of Industrial Relations v. Stedelbauer Chevrolet Oldsmobile Ltd., 1968 CanLII 55 (SCC), [1969] S.C.R. 137). Those cases were, of course, all directed to a process in a tribunal other than a preliminary hearing operating under s. 475 of the Code. The preliminary hearing under review here is entirely statutory and, so far as this appeal is concerned, is completely prescribed in s. 475.

11. It may be said that there is a rationale in law for drawing a distinction between judicial review of committals and judicial review of discharges after a preliminary hearing. A primary emphasis in the cases involving error of law in the committal of an accused has been on avoiding delay of the trial, which it might be within the power of an accused to bring about through applications for judicial review for errors of law. The same consequence does not follow where the Crown seeks an order quashing the discharge of the accused.

12. However, the reason underlying the court's restriction of supervisory remedies is equally valid in both cases. It has been said numerous times that the objective of holding a preliminary inquiry is merely to determine whether there is enough evidence against the accused to justify ordering him to stand trial. It is not intended to determine, finally or otherwise, the accused's guilt or innocence. Therefore, it is inappropriate to allow the expansion of supervisory remedies designed to correct errors of law made in the course of preliminary inquiries which relate, for example, to the admission of evidence, the questioning of witnesses, or the production of documents. A preliminary hearing "is not a trial and should not be allowed to become a trial" (Patterson, supra, per Judson J. at p. 412; see also Cohen, supra, per Pigeon J. at p. 309). The questioning of errors of law is therefore as inappropriate in proceedings to quash a discharge as it is in proceedings to quash a committal. Errors which go to the preliminary hearing judge's jurisdiction are, however, different. Superior courts, from the earliest days in our law, have exercised their inherent authority to enforce compliance with the law by lower tribunals which must exercise fully without exceeding their statutory jurisdiction. Such is the position of a preliminary hearing tribunal.

13. It follows that both parties to the preliminary hearing process are subject to the same obligations and enjoy the same rights under the jurisdictional test as applied in Patterson, supra, to the parent statute as interpreted by Shephard, supra. It must, therefore, be determined whether the error in this case was jurisdictional.

14. An analogous jurisdictional issue arose before this Court in Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, where the Court confined the powers of a judge sitting in a court whose jurisdiction, specified by statute, is limited to those powers set forth in the statute, that is the Criminal Code, and no others. The tribunal was there, and is here, entirely statutory and its activities are measured on judicial review against the jurisdiction accorded to it by the governing statute. In the simplest terms, the question in this appeal therefore reduces itself to whether, as interpreted in Shephard, supra, s. 475 provides an authorization or mandate only for a test or process directed to determining that a jury could, upon the evidence presented, convict the accused.

15. The cases, though not conclusively determining whether the error here is jurisdictional or not, are nevertheless instructive. Patterson was a case in which the accused had been committed for trial on a charge of using an instrument with intent to procure a miscarriage. He argued that it was reviewable error for the committing justice to refuse production of a statement made by the woman mentioned in the charge to the police so that defence counsel could use it in cross‑examination. The majority of this Court disagreed. Spence J. in dissent, and Hall J. who concurred in the result reached by Spence J. but delivered separate reasons, both held that a limitation on the accused's right to fully cross‑examine the witnesses at the preliminary inquiry would amount to a denial of natural justice, and thus to jurisdictional error. Their disagreement related to their different conclusions as to whether such a limitation had occurred on the facts.

16. In the Cohen case, supra, the application was brought before the magistrate's decision had been reached. The error alleged in that case was that the magistrate had wrongly sustained the Crown's objection to questions asked by defence counsel of Crown witnesses. This Court held that a decision as to the admissibility of evidence, however erroneous, does not constitute jurisdictional error. See also R. v. Norgren (1975), 1975 CanLII 1453 (BC CA), 27 C.C.C. (2d) 488 (B.C.C.A.) and Re Nicols and The Queen, reported with Re Martin, Simard and Desjardins and The Queen (1977), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 455 (C.A.), in which the refusal by the presiding judge to order the production of a police notebook for cross‑examination by the accused may have been an error in law, but was not jurisdictional and hence beyond review.

17. Forsythe, supra, was a similar case. The accused's application for certiorari was denied where the Provincial Court Judge had disallowed questions sought to be asked of the complainant at an in camera hearing pursuant to s. 142 of the Criminal Code. Laskin C.J. set out a catalogue of some of the types of errors which might result in a loss of jurisdiction by a justice at a preliminary inquiry. He said, at pp. 271‑72:

In speaking of lack of jurisdiction, this Court [in Patterson] was not referring to lack of initial jurisdiction of a judge or magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code: see Doyle v. The Queen [1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597]. Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec [1953 CanLII 45 (SCC), [1953] 2 S.C.R. 140]. In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross‑examine prosecution witnesses. Mere disallowance of a question or questions on cross‑examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code.

18. This Court's most recent statement on the question, Skogman v. The Queen, supra, was also a case in which the accused applied for certiorari to quash his committal, here because, as was admitted by the Crown, there was no evidence of an essential element of the offence. The application was successful. The majority of the Court, held at pp. 100‑01 that s. 475,

At minimum, . . . calls upon the presiding justice to form an opinion as to whether evidence is "sufficient" or whether "no sufficient case is made out" so as to justify a conclusion by the presiding justice "to put the accused on trial" or not to commit the accused to trial. There is no rule within the statutory framework adopted by Parliament for arbitrary action by the tribunal.

It was therefore concluded, at p. 104:

The courts of this country have, since the judgment in Martin [Re Martin, Simard and Desjardins and The Queen], supra, generally adopted the rule that a committal of an accused at a preliminary, in the absence of evidence on an essential ingredient in a charge, is a reviewable jurisdictional error.... "No evidence" on an essential element of the charge against the accused cannot amount to "sufficient evidence" under s. 475.

A number of lower court decisions were to the same effect: Re Martin, Simard and Desjardins and The Queen, supra, Re Poirier and The Queen (1981), 1981 CanLII 3236 (QC CA), 62 C.C.C. (2d) 452, Re Robar and The Queen (1978), 1978 CanLII 2407 (NS CA), 42 C.C.C. (2d) 133 (N.S.C.A.)

19. In summary, it is clear enough that no jurisdictional error is committed where the justice incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry. This is, of course, subject to the important condition that rulings in the course of a preliminary hearing on evidentiary questions as to the extent of limitation on the basic right to cross‑examine or to call witnesses, may develop into a violation of natural justice and fall within the condemnation of Forsythe, supra, and hence be subject to judicial review. See also Re Martin, Simard and Desjardins and The Queen, supra, at p. 488. Jurisdictional error is committed where "mandatory provisions" of the Criminal Code are not followed, and in the context of s. 475, this means at least that there must be some basis in the evidence proffered for the justice's decision to commit. There is no jurisdiction to act "arbitrarily". However, where there is some evidence, it is clearly within the justice's jurisdiction to come to a decision as to whether that evidence is of sufficient weight to commit. This follows from the statement of Lord Sumner in Nat Bell Liquors, Ltd., supra, at p. 144:

On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court....

The Nat Bell Liquors, Ltd. appeal, supra, concerned the attempted judicial review of a conviction by a magistrate on a charge under a provincial statute from which there was no appeal. The Court was not there concerned with s. 475, although some of the evidentiary considerations relating to judicial review bear the same consequences whether the review is of a decision of an inferior tribunal or the proceedings under s. 475.

20. The question therefore remains whether the preliminary hearing judge, in deciding that because the evidence did not establish beyond reasonable doubt that the accused was identified as the person responsible for the offences charged, he could not commit him for trial, was acting within his jurisdiction or was acting in excess of his jurisdiction under s. 475. The appellant rightly points out that the section does not direct the judge as to the standard of proof to be applied in determining the sufficiency of the evidence for committal or for discharge. It might be said, therefore, that the judge exercised his discretion as to the proof demanded by the statute. There is certainly no specific direction, as there was in Doyle, supra, where the statute required that the judge "shall" grant an adjournment in a particular way and subject to particular limitations.

21. In my view the appellant cannot successfully sustain his submissions. This is not a case where the reviewing judge merely thinks that the justice was wrong, in the sense that if the reviewing judge had been sitting at the preliminary inquiry, he would have reached a different conclusion as to the sufficiency of the evidence. It is a case in which the real complaint is that the exercise of weighing the evidence proceeded on an entirely erroneous basis in law, which in turn goes to the mandate issued by Parliament in s. 475. That is to say, s. 475, in the context in which it is found in the Criminal Code, does not direct the preliminary hearing judge to determine guilt or innocence. This is clear from s. 475 viewed alone and would be the case even if Shephard, supra, which now defines the test or standard of proof that should in law be applied by a preliminary hearing judge, had never been decided.

22. There are dicta suggesting that an error as to the burden or standard of proof applicable under s. 475 of the Criminal Code is error of law only, and does not go to jurisdiction: see R. v. Hubbard, 1975 CanLII 1580 (BC SC), [1976] 3 W.W.R. 152 (B.C.S.C.), Re Mitchell and Maynes and The Queen (1976), 1976 CanLII 321 (AB SCTD), 31 C.C.C. (2d) 344 (Alta. S.C.) (In an entirely different context, Lowry J. in R. (Hanna) v. Ministry of Health and Local Government, [1966] N.I. 52 (Q.B.), assumed that error as to the "kind and standard of proof" resting on a party who sought certiorari to review the decision of a Minister on an appeal from a planning decision was an error of law only and did not go to jurisdiction.) In my view, Hubbard and Re Mitchell, supra, are not supportive of the appellant's position in this case. The preliminary hearings in those cases took place before this Court in Shephard, supra, had authoritatively interpreted the parliamentary directive to the judicial officer presiding over a preliminary hearing. While the tests employed in Hubbard and Re Mitchell under s. 475 were later rejected in Shephard, in neither of these cases did the decision‑maker fundamentally misconstrue the nature of the task in which he was engaged under the section. In both cases, the preliminary inquiry judge in fact made the determination as to sufficiency of evidence required of him by s. 475.

23. In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does. That is the nature of the error in this appeal. Norton Prov. Ct. J.'s adoption of the reasonable doubt test indicates that he was not, as s. 475 requires, directing his mind to the question whether the evidence was sufficient to warrant committing the accused to stand trial. Rather, in effect, he arrogated to himself the decision of the issue reserved by Parliament to another forum, the trial court. He engaged in a process designed for determining guilt or innocence, that is, for acquitting or convicting an accused. In fact, the formal order, signed by the learned preliminary hearing judge, indicates that the charges against the accused were "dismissed", and not "discharged" as required by the section of the Code. A dismissal is, if made by a court of competent jurisdiction, a final disposition of the case against an accused sufficient to support the plea of autrefois acquit: Petersen v. The Queen, 1982 CanLII 200 (SCC), [1982] 2 S.C.R. 493, R. v. Riddle, 1979 CanLII 1601 (SCC), [1980] 1 S.C.R. 380. Norton Prov. Ct. J.'s jurisdiction was defined by the enabling statute. That jurisdiction was exceeded when, instead of performing the function assigned to him, he did something quite different. The error in this proceeding was not that the Provincial Court Judge merely misstated the test (which would, as was concluded in Hubbard, supra, be an error of law within jurisdiction) but that he dismissed the information.

24. I therefore conclude that jurisdictional error is present in this case and that these proceedings are subject to judicial review because certiorari, or proceedings in the nature of certiorari, run equally where the error in jurisdiction results in a discharge or a committal.

25. I then turn to the final issue, which is whether certiorari should provide a remedy where the Crown has other remedies available which have not been exhausted. This matter has been touched upon by this Court in other cases. In Forsythe, Laskin C.J. wrote that although certiorari is a discretionary remedy, it would not be denied to quash a committal for trial because "there is no other recourse. Committals for trial are not appealable and can only be challenged by certiorari or motion to quash" (at p. 271). Here, it is alleged that there are alternative remedies, or at least alternative avenues of action: the Crown can prefer a direct indictment or it can re‑charge the accused and proceed to a new preliminary inquiry.

26. The discretion to decline to grant certiorari is most frequently exercised where the alternative remedy consists of a right to appeal the decision complained of (see Reid and David, Administrative Law and Practice (2nd ed., 1978), at pp. 369‑72, Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561). Other alternative remedies have also been considered to justify a refusal of certiorari (i.e., where the statute sets out specific alternatives other than an appeal, or where there may be a right of action for damages or for a declaration). However, "[t]he court ought not to refuse certiorari because of alternative remedies other than appeal unless it is clearly satisfied that those other remedies are more appropriate" (De Smith’s Judicial Review of Administrative Action (4th ed., 1980), at p. 426).

27. There is a possibility, as the appellant concedes, that if the Crown were to proceed by either of the two routes said to afford alternative remedies, this may be held to amount to abuse of process. Further, it must be considered that in this case, the alternatives are not truly alternative, in the sense that an appeal, for example, is. As Monnin J.A. pointed out in the Court of Appeal, "It is not a remedy available to correct an error to have to start all over again, or to prefer an indictment with specific consent of the Attorney‑General." The erroneous determination continues to stand, and may well hinder the pursuit of the suggested alternatives. In taking these factors into account, it is not "clearly" more appropriate to require the Crown to embark on the doubtful course of relaying the charges or preferring a direct indictment. As Matas J.A. pointed out below, these courses of action also may lead to the very opportunities for delay in bringing the case to trial which the limitations on certiorari in this context were designed to avoid. The remedy of certiorari should not, therefore, be denied.

28. For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Martens, Alsip, Tracey, Zyla, Winnipeg.

Solicitor for the respondent: Gordon E. Pilkey, Winnipeg.