The Code sets out no procedure for appealing the decision to commit or discharge at a preliminary inquiry, and so no appeal is possible. This means that review of such a decision can only be made on the basis of an action for certiorari. Part XXVI of the Code regulates the use of extraordinary remedies in the criminal justice system and attaches some limits on the occasions when certiorari is available,93but it does remain available in the case of decisions at a preliminary inquiry. In principle, it is open to the Crown to seek certiorari in the case of a discharge, and this does sometimes occur.94As a practical matter, the Crown also has the usually simpler option, under section 577, of preferring a direct indictment despite the discharge, so more frequently certiorari applications involve an accused seeking review of a decision to commit.
Because the preliminary inquiry decision is reviewed by way of certiorari rather than appeal, it is not sufficient to show an error of law on the part of the preliminary inquiry judge. Rather, certiorari will only be granted if the judge has fallen into jurisdictional error. Many errors of law will simply be errors within a judge’s jurisdiction. Erroneously excluding evidence at the preliminary hearing is unlikely to be a jurisdictional error (for example, an error with respect to the application of the rules of evidence will not be a jurisdictional error unless it rises to the level of a denial of natural justice).95
Apart from denying natural justice, it is also a jurisdictional error if a trial judge fails to comply with a mandatory provision of the Code. In particular, section 548 of the Code requires a judge to commit the accused for trial if "there is sufficient evidence." This means that there
must be at least some basis in the evidence at the preliminary inquiry that supports the decision to commit.96It also means, since a preliminary inquiry judge does not weigh evidence, that where the Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accused even if the defence has offered exculpatory evidence.97If there is no evidence on some essential element of the charge, however, it will be a jurisdictional error for the preliminary inquiry judge to commit the accused to trial.98
The existence of evidence at the preliminary inquiry must be understood broadly. Even if the Crown has indicated that evidence led through a...