Certiorari Mandamus Prohibition

• Regina Ex Rel. Christoffersen v. Minister of Highways

  [1959] C.C.S. NO. 489 · Alberta Supreme Court · impaired driving

  Regina Ex Rel. Christoffersen v. Minister of Highways

  [1959] C.C.S. NO. 489
  Alberta Supreme Court | 1959

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  Background

  Christoffersen, an Alberta resident, got convicted of impaired driving while visiting Ontario. When word got back to Alberta, the Minister of Highways immediately suspended his Alberta driver's licence for six months under section 152(3) of the Vehicles and Highway Traffic Act. Six weeks later, Christoffersen obtained new insurance through Alberta's assigned risk plan and provided proof of financial responsibility — exactly what the law required to get his licence back.

  But the Minister refused to lift the suspension. Christoffersen applied for a mandamus order to force the Minister to restore his driving privileges. The government's defence? That driving was a privilege, not a right, so they could suspend it whenever they felt like it.

  Issues

  1. Is a driver's licence a right or a privilege under Alberta law?
  2. Does section 152(3) require automatic restoration of a licence once financial responsibility is proven?
  3. Can the Minister exercise arbitrary discretion in licence suspensions?

  The Right to Drive

  The court delivered a sweeping rejection of the government's position. The judge ruled that driving is fundamentally a right, not a privilege, rooted in ancient common law principles. "Since time immemorial the Queen's subjects have been free to move along the Queen's highway provided only they kept the Queen's peace," the court declared.

  Modern requirements like proving technical competence don't transform this right into a privilege — they simply add duties that come with exercising the right. The government can require you to prove you can drive safely, but that doesn't give them unlimited power to deny licences arbitrarily.

  Mandatory Restoration

  The court found that section 152(3) created a mandatory duty for the Minister: suspend the licence when notified of certain convictions, then restore it immediately once the driver provides proof of financial responsibility. The suspension wasn't meant to be punitive for a fixed period — it was purely administrative, lasting only until insurance requirements were met.

  Since Christoffersen had provided the required proof through the assigned risk plan, the Minister had no legal authority to continue the suspension. The court granted the mandamus order, forcing immediate restoration of the licence.

  Key Takeaway

  When a statute sets specific conditions for licence restoration, the government must follow them — they can't just make up additional requirements or extend suspensions indefinitely.

  This case establishes important principles about procedural fairness and the limits of government discretion, even in regulatory matters like licensing.

  Read the decision

• R v Awashish

  [2018] SCC 45 · Supreme Court of Canada · impaired driving

  R. v. Awashish

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

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  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.

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• R v Lippa

  [2013] ONSC 4424 · Ontario Superior Court of Justice · summary conviction matters

  R. v. Lippa

  2013 ONSC 4424
  Ontario Superior Court of Justice — Justice M.K. Fuerst | June 26, 2013

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  Background

  Marian Lippa is a licensed paralegal who runs Lippa Legal Services and represents clients in criminal matters, including summary conviction court. On two separate occasions in 2010 and 2011, she appeared at a Newmarket courthouse and was told by the Justice of the Peace that she couldn't sit in the front section reserved for lawyers. The JP cited "safety reasons" and "tradition" going back hundreds of years, saying only lawyers could sit past the gate of the bar. Lippa had to sit with the public, and when cases involving paralegals were called, they had to wait until all lawyer matters were dealt with first.

  Lippa was embarrassed by this treatment and claimed it hurt her business. One of her clients was worried their case was prejudiced by what happened. She filed an application seeking court orders to force equal treatment between lawyers and paralegals in courtroom seating and case calling order.

  Issues

  1. Did the Justice of the Peace exceed jurisdiction by restricting where paralegals could sit in the courtroom?
  2. Did the Justice of the Peace breach natural justice by calling lawyer cases before paralegal cases?
  3. Is the Barristers Act unconstitutional for creating a hierarchy between lawyers and paralegals?

  The Court's Ruling on Professional Hierarchy

  Justice Fuerst dismissed the application entirely, but his reasons reveal important distinctions between lawyers and paralegals. While paralegals are licensed professionals deserving of respect, they are not lawyers. The Law Society Act specifically limits what paralegals can do — they can represent people in summary conviction court, but with restrictions. For example, they cannot examine witnesses if the maximum penalty exceeds six months imprisonment, unless there's a special program (which doesn't exist in Ontario).

  Crucially, section 29 of the Law Society Act states that only lawyers are "officers of every court of record in Ontario." Paralegals are not included. The Barristers Act establishes a clear order of precedence in courts: federal Crown, provincial Crown, Queen's Counsel by seniority, then all other lawyers by their call to the bar. This hierarchy doesn't include paralegals because they're not "members of the bar."

  Courtroom Management Authority

  The court found that judges have inherent power to control their own courtrooms, including where people sit and the order cases are called. This is essential for maintaining order and the integrity of court proceedings. The Justice of the Peace didn't exceed jurisdiction — she was managing a busy remand courtroom where people come and go constantly. Natural justice doesn't require judges to hear from every affected person before making basic courtroom management decisions.

  However, Justice Fuerst noted that if seats are reserved for lawyers in small courtrooms, some accommodation should be made for paralegals and articling students so they're not relegated to waiting in courthouse hallways until called.

  Key Takeaway

  Paralegals have a legitimate role in the justice system, but they operate within a different tier than lawyers — and that's legally established, not discriminatory.

  While this case involved criminal court, it clarifies that paralegals practicing in Provincial Offences Court should expect to be treated as legal professionals, but not necessarily with identical privileges to lawyers. Courts have broad discretion in managing their processes and calling order.

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• R v Salim R v Escobar R v Chung R v Ferlisi

  [2000] O.J. No. 507

  Read the decision

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