R v Awashish

R. v. Awashish

2018 SCC 45
Supreme Court of Canada — Rowe J. | October 26, 2018

Background

Justine Awashish was charged with impaired driving and driving "over 80" in Quebec. She wanted additional disclosure from the Crown — specifically, maintenance records for the breathalyzer device, technician training records, and calibration logs. When the Crown said no, she brought a disclosure application. The provincial court judge ordered the Crown to hand over the records. The Crown didn't like this decision, so they took it to Superior Court and asked for certiorari — basically asking the higher court to quash the lower court's order because it was wrong.

The Superior Court agreed and quashed the disclosure order. But Awashish wasn't done. She brought a second application — this time a McNeil application — asking the court to force the Crown to at least tell her whether these records existed and who had them. The provincial court judge granted this too. Again, the Crown sought certiorari. Again, the Superior Court granted it. The Court of Appeal reversed, saying certiorari shouldn't be available for this kind of challenge.

Issues

1. When can the Crown (or defence) use certiorari to challenge interlocutory rulings in criminal cases?
2. Was certiorari properly granted to quash the disclosure order in this case?

The Certiorari Restriction

The Supreme Court laid down a clear rule: in criminal proceedings, certiorari is available to parties only for jurisdictional errors by provincial court judges. Not for legal errors, not for evidentiary rulings you disagree with — only when the judge acts without jurisdiction entirely.

Why such a narrow rule? Because allowing broader use of certiorari would create a backdoor appeal system for interlocutory rulings. Criminal appeals are statutory under section 674 of the Criminal Code, and generally there are no interlocutory appeals. The court emphasized that "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own." Letting parties run to Superior Court every time they disagreed with an evidentiary ruling would slow the system to a crawl and contradict the R. v. Jordan framework for prompt justice.

The court distinguished between parties and third parties: third parties can use certiorari more broadly because they have no right of appeal, but parties in criminal cases are limited to jurisdictional challenges only.

The McNeil Framework

The court also clarified when the Crown has a duty to inquire about records. Under R. v. McNeil, the Crown only has to make reasonable inquiries of other state agencies after it becomes aware that relevant records exist. The framework from R. v. Chaplin applies when the Crown denies records exist: the defence must first "establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant."

Here, Awashish never established that basis — she just asked the Crown to go looking. The provincial court judge was wrong to order the Crown to inquire, but since this was a legal error (not jurisdictional), certiorari couldn't fix it.

Key Takeaway

You can't use certiorari as a do-over button for criminal court rulings you don't like.

Both Crown and defence need to understand that most interlocutory rulings in criminal court are final until trial or appeal. The system deliberately limits challenges to keep cases moving, even when judges make legal errors on disclosure or evidence.