R. v. Dubois, (1986) 41 Man.R.(2d) 1 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 14, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 41 Man.R.(2d) 1 (SCC)

R. v. Dubois (1986), 41 Man.R.(2d) 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Dubois

(No. 17513)

Indexed As: R. v. Dubois

Supreme Court of Canada

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

April 24, 1986.

Summary:

The accused was charged with robbery and of unlawful use of a firearm while committing an indictable offence. The Provincial Court judge at the preliminary hearing was not satisfied beyond a reasonable doubt of the identification of the accused and dismissed the charge. The Crown applied for certiorari to quash the judge's decision.

The Manitoba Court of Queen's Bench, in a decision reported 15 Man.R.(2d) 100; 27 C.R.(3d) 173, dismissed the application. The Crown appealed.

The Manitoba Court of Appeal, O'Sullivan, J.A., dissenting, in a decision reported at [1983] 1 W.W.R. 97, 18 Man.R.(2d) 90; 2 C.C.C.(3d) 77; 31 C.R.(3d) 117, allowed the appeal, quashed the discharge and remitted the matter to the Provincial Court. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Administrative Law - Topic 5007

Judicial review - Certiorari - When available - Criminal matters - Committal or discharge - The Supreme Court of Canada reiterated that where the committal of an accused is under judicial review "certiorari lies only where the error goes to jurisdiction, and not in respect of a nonjurisdictional error of law, even where the error appears on the face of the record" - See paragraph 4 - The Supreme Court of Canada held that the same rule applies where the Crown seeks judicial review of an accused's discharge after a preliminary hearing - See paragraphs 1 to 24.

Administrative Law - Topic 5189

Judicial review - Certiorari - Bars - Existence of another remedy - A preliminary hearing justice committed a jurisdictional error in discharging an accused under s. 475 of the Criminal Code - The Crown sought certiorari to quash the discharge, notwithstanding that it was open to the Crown to prefer an indictment or to relay charges - The Supreme Court of Canada held that the remedy of certiorari should not be denied even though other remedies were available to the Crown - See paragraphs 25 to 28.

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of - The Criminal Code of Canada, s. 475, empowered a preliminary hearing justice to commit or discharge an accused - The Supreme Court of Canada discussed what would constitute a jurisdictional error by a justice acting under s. 475 - See paragraph 19.

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of - The Criminal Code of Canada, s. 475, empowered a justice after a preliminary hearing to commit or discharge an accused depending on the sufficiency of the evidence - The Supreme Court of Canada held that where a justice applied the wrong test for sufficiency of evidence, he did not commit a jurisdictional error - See paragraph 23.

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of - The Criminal Code, s. 475, empowered a preliminary hearing justice to commit or discharge an accused, depending on the sufficiency of the evidence - A justice "dismissed" an accused because he was not satisfied of the accused's identity beyond a reasonable doubt - The Supreme Court of Canada held that the justice applied the wrong test for sufficiency of evidence, but did not thereby commit a jurisdictional error - The court held, however, that by adopting the beyond reasonable doubt test and "dismissing" the accused, the justice decided an issue reserved to another forum (guilt or innocence) and thereby committed a jurisdictional error subject to judicial review - See paragraphs 1 to 24.

Criminal Law - Topic 3602

Preliminary inquiry - Adjudication and review - Evidence required for committal or discharge - The Criminal Code of Canada, s. 475, empowered a preliminary hearing justice to commit or discharge an accused depending on the sufficiency of the evidence - The Supreme Court of Canada reiterated that the test to be employed to determine whether an accused should be committed for trial under s. 475 is whether there is any evidence upon which a reasonable jury properly instructed could convict the accused (United States of America v. Shephard, 9 N.R. 215) - See paragraph 2.

Criminal Law - Topic 3605

Preliminary inquiry - Adjudication and review - Judicial review of committal order - General - The Supreme Court of Canada reiterated that where the committal of an accused is under judicial review, "certiorari lies only where the error goes to jurisdiction, and not in respect of a nonjurisdictional error of law, even where the error appears on the face of the record" - See paragraph 4.

Criminal Law - Topic 3613

Preliminary inquiry - Adjudication and review - Judicial review of discharge order - The Supreme Court of Canada reiterated that where the committal of an accused is under judicial review, "certiorari lies only where the error goes to jurisdiction, and not in respect of a nonjurisdictional error of law, even where the error appears on the face of the record" - See paragraph 4 - The Supreme Court of Canada held that the same rule applies where the Crown seeks judicial review of an accused's discharge after a preliminary hearing - See paragraphs 1 to 24.

Criminal Law - Topic 3613

Preliminary inquiry - Adjudication and review - Judicial review of discharge order - The Criminal Code, s. 475, empowered a preliminary hearing justice to commit or discharge an accused, depending on the sufficiency of the evidence - A justice "dismissed" an accused because he was not satisfied of the accused's identity beyond a reasonable doubt - The Supreme Court of Canada held that the justice applied the wrong test for sufficiency of evidence, but did not thereby commit a jurisdictional error - The court held however, that by adopting the beyond reasonable doubt test and "dismissing" the accused, the justice decided an issue reserved to another forum (guilt or innocence) and thereby committed a jurisdictional error subject to judicial review - See paragraphs 1 to 24.

Cases Noticed:

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, consd. [paras. 2, 13, 14, 21].

R. v. Dubois, 15 Man.R.(2d) 100, revd. 18 Man.R.(2d) 90; 27 C.R.(3d) 173, refd to. [para. 3].

Patterson v. R., [1970] S.C.R. 409, consd. [paras. 4, 9, 12, 13, 15].

Cohen and Attorney General of Quebec, Re, [1979] 2 S.C.R. 305; 27 N.R. 344, consd. [paras. 4, 9, 12, 16].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520, consd. [paras. 4, 9, 17, 19, 25].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, consd. [paras. 4, 9, 18].

R. v. Nat Bell Liquors, Limited, [1922] 2 A.C. 128 (P.C.), dist. [paras. 10, 19].

R. v. Northumberland Compensation Appeal Tribunal; ex p. Shaw, [1952] 1 K.B. 338 (C.A.), dist. [para. 10].

Board of Industrial Relations of Alberta et al. v. Stedelbauer Chevrolet Oldsmobile Ltd., [1969] S.C.R. 137, dist. [para. 10].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285, consd. [paras. 14, 15, 20].

R. v. Norgren (1975), 27 C.C.C.(2d) 488 (B.C.C.A.), refd to. [para. 16].

Martin, Simard and Desjardins and R., Re; Nichols and R., Re (1977), 20 O.R.(2d) 455 (C.A.), affd. [1978] 2 S.C.R. 511; 20 N.R. 373, consd. [paras. 16, 18, 19].

Robar and R., Re (1978), 42 C.C.C.(2d) 133 (N.S.C.A.), refd to. [para. 18].

R. v. Hubbard, [1976] 3 W.W.R. 152 (B.C.S.C.), dist. [paras. 22, 23].

Mitchell and Maynes and R., Re (1976), 31 C.C.C.(2d) 344 (Alta. S.C.), dist. [para. 22].

R. (Hanna) v. Ministry of Health and Local Government, [1966] N.I. 52 (Q.B.), refd to. [para. 22].

R. v. Petersen, [1982] 2 S.C.R. 493; 44 N.R. 92, refd to. [para. 23].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91, refd to. [para. 23].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 26].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 475.

Authors and Works Noticed:

de Smith, Judicial Review of Administrative Action (4th Ed. 1980), p. 426 [para. 26].

Reid and Davis, Administrative Law and Practice (2nd Ed. 1978), pp. 369-372 [para. 26].

Counsel:

M.T. Tracey and M.B. Nepon, for Dubois;

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

This appeal was heard on March 14, 1985, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada. The following decision of the court was delivered on April 24, 1986, by Estey, J.