2017 QCCA 1376, 2017 QCCA 1376

Comtois c. R. 2017 QCCA 1376 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006301-160 500-10-006324-162 (505-36-001928-169) DATE: 15 SEPTEMBER 2017 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PATRICK HEALY, J.A. THOMAS A. DAVIS, J.A. (AD HOC) 500-10-006301-160 SÉBASTIEN COMTOIS APPELLANT - Interested person v. HER MAJESTY THE QUEEN RESPONDENT - Petitionner and THE HONOURABLE JACQUES ROUILLIER, J.P.M. IMPLEADED PARTY – Impleaded party 500-10-006324-162 BENJAMIN CADIEUX APPELLANT – Interested person v.

HER MAJESTY THE QUEEN RESPONDENT- Petitionner and THE HONOURABLE JACQUES ROUILLIER, J.P.M.

IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] THE COURT on appeal from a decision rendered on November 17, 2016, by the Honourable Catherine Mandeville of the Superior Court, District of Longueuil, granting the respondent’s motion for certiorari on the refusal of the impleaded justice of the peace to issue the search warrants and issuing said warrants; [ 2 ] For the reasons of Healy, J.A., with which Marcotte, J.A., and Davis, J.A. ( ad hoc ), agree, THE COURT : [ 3 ] ALLOWS the appeals; [ 4 ] DISMISSES the motion for certiorari ; [ 5 ] QUASHES the warrants issued by the Superior Court.

GENEVIÈVE MARCOTTE, J.A. PATRICK HEALY, J.A.

THOMAS A. DAVIS, J.A. (AD HOC) Mtre Marc-Antoine Rock Rock, Vleminckx, Dury, Lanctôt et Associés For Sébastien Comtois Mtre Michel Pelletier For Benjamin Cadieux Mtre Maxime Hébrard Director of Criminal and Penal Prosecutions For respondent Date of hearing: June 13, 2017 REASONS OF HEALY, J.A. [ 6 ] These two appeals were heard together because they arise from the same investigation and they raise the same questions. Context [ 7 ] As part of an extended inquiry concerning drug trafficking, investigators sought the issuance of ten search warrants under

section 11 of the Controlled Drugs and Substances Act . [1] On 15 November 2016 the justice of the peace refused to issue the warrants on the ground that the ten informations to obtain them were insufficient to satisfy the requirement of reasonable grounds. [2] The prosecution then sought in the Superior Court to quash these decisions by certiorari. On 17 November 2016 the Superior Court granted certiorari, quashed the decisions of the justice and issued the warrants sought on the same informations.

The two questions before the Court are whether the Superior Court erred in quashing the justice’s decisions by certiorari and, second, whether the Superior Court erred in issuing the warrants. If so, a third question is whether the curative proviso can apply. [3] Superior Court [ 8 ] The hearing ex parte took place in the Superior Court on 17 November 2016. Counsel for the prosecution informed the judge that she had not previously acted in a proceeding to quash by certiorari a justice’s decision to issue or refuse to issue a search warrant.

She added that in the absence of an appeal the application for certiorari was based upon “a loss of jurisdiction.” In its motion for a writ of certiorari the prosecution specifically alleged that the justice “erred” in his assessment of the sufficiency of the grounds affirmed by the police informant in the various informations. The prosecution submitted no other ground in law to support its motion for certiorari . The prosecution asserted also that a writ of certiorari is the only appropriate remedy to correct the alleged error.

The oral submissions of the prosecution in the Superior Court reinforced this affirmation: “Notre intention ici, c’est que le bref de certiorari est l’équivalent d’un appel dans les circonstances et qu’il n’y pas autre moyen de prévu à 22 des règlements de procédures de la Cour supérieure.

Il n’y pas un autre moyen d’appel autre que celui-là qui est offert dans les présentes circonstances.ˮ In the conclusions sought by the motion the prosecution requested that the Superior Court authorise the issuance of the search warrants sought by the informant. [ 9 ] For the purposes of the hearing in the Superior Court the prosecution submitted new copies of the same informations that had been submitted to the justice. No witnesses were heard in the Superior Court but the prosecutor and the judge conducted a brief review of the facts alleged in the informations submitted to the justice.

The oral decision of the Superior Court was pronounced in these terms : Alors, indiquez au procès-verbal, Madame la greffière, que vu la demande en certiorari et sa prise de connaissance de l’ensemble des pièces R-1 à R-11, considérant les représentations du ministère Public, le Tribunal conclut que le juge de paix magistrat a erré en n’autorisant pas l’émission de perquisition demandés, et ce, puisque les motifs apparaissant aux divers rapports de dénonciation, résumé de l’enquête et annexes, permettrait de croire raisonnablement et probablement que les biens, dont on recherche la perquisition… alors, les biens dont on cherche la perquisition et la saisie sont des lieux où peuvent être présents l’un ou l’autre des éléments décrits au 11e)… 11(1) de la

Loi sur les drogues et autres substances . Pour ces motifs, le Tribunal casse la décision de refus d’émettre les mandats, autorise l’émission des mandats de perquisition décrits dans les pièces R-1 à R-11. [4] In this judgment the Superior Court refers expressly to the motion for certiorari , answers by granting it on the ground that that justice erred and concludes by issuing the warrants. Having pronounced judgment, the judge then signed the warrants and ordered that they be sealed. Appeal [ 10 ] The written pleadings for the two appellants are virtually identical.

Both assert that the motion for certiorari before the Superior Court was a disguised appeal of the decisions made by the justice of the peace. Both affirm that the judge of the Superior Court erred in issuing the writ of certiorari because, in the absence of a ground of appeal, a writ of certiorari could not be granted to reverse discretionary decisions by the justice unless those decisions were made without jurisdiction. The appellants ask this Court to quash the

warrants issued by the Superior Court. [ 11 ] The respondent submits that the Superior Court properly issued the writ of certiorari on the basis that the refusal of the justice was invalid as error on the face of the record. (It will be recalled that in the Superior Court the prosecution took the position that the justice had lost jurisdiction when deciding to refuse the issuance of the warrants.) Second, the respondent claims that the hearing in the Superior Court was, to quote its expression, “ de facto ” a fresh hearing of the applications for the issuance of search warrants and that the judge of the Superior Court properly exercised the jurisdiction of a justice to issue the warrants.

The respondent argues further that this statutory jurisdiction does not flow from the grant of certiorari . [5] The respondent submits that the Superior Court exercised the original jurisdiction of a justice to issue the warrants and thus, for all practical purposes, the issuance of a writ of certiorari is of no consequence. Finally, the respondent proposes that if the issuance of the writ of certiorari was an error of law, or tainted by any other irregularity, the appellants suffered no prejudice as a result.

On this basis the respondent suggests that the proviso is applicable. [ 12 ] The respondent’s position effectively invites the Court to dismiss the appeal on the basis that the issuance of the writ of certiorari was nugatory, and thus in effect a nullity, and the warrants were properly issued by the Superior Court in the exercise of the jurisdiction of a justice. Although the reasons of the Superior Court are not entirely clear on this point, the record makes clear that the motions judge decided to quash the decisions of the justice. This was done in direct response to a motion for certiorari .

In the absence of an appeal there is no basis other than certiorari upon which the Superior Court could make such an order. For this reason it cannot plausibly be said that the decision on this motion was of no consequence. Accordingly, this Court must consider whether the decision to grant the motion was correct. Discussion [ 13 ] To repeat, the respondent does not suggest that the justice’s refusal to issue the warrants was made without jurisdiction.

It suggests that the decision, properly made within his allocated jurisdiction, nevertheless demonstrates error on the face of the record. [ 14 ] The respondent also suggests that the justice’s decisions are appropriately characterised as final because they dispose definitively of the application for the issuance of search warrants. In the absence of a right of appeal, according to the prosecution, these decisions are thus subject to review by certiorari .

This characterisation is misleading because the justice’s decisions are in no way final in the sense that they prevent the presentation of a renewed or fresh application to another justice. The respondent not only acknowledges this possibility but submits that the Superior Court properly exercised the jurisdiction of a justice when issuing the warrants.

This submission cannot be reconciled with a characterisation of the justice’s decisions as final. [ 15 ] The respondent is right to affirm that the grant of certiorari is not a condition precedent to the presentation of a fresh application for the issuance of a search warrant by a court exercising the jurisdiction of a justice. But that is not what occurred in this case. The Superior Court did grant certiorari to quash the justice’s decisions and did so explicitly on the ground that the justice had erred.

It follows that if that decision was made by error it must be reversed, as must the decision to issue the warrants. [ 16 ] There has been some uncertainty in the jurisprudence whether error on the face of the record is a valid ground for the issuance of certiorari in relation to decisions relating to the authorisation of search warrants by justices of the peace. There has been further uncertainty, if it is a valid remedy, as to what constitutes error of law on the face of the record in criminal proceedings.

Somewhat older cases would suggest that certiorari would lie solely for absence, loss or excess of jurisdiction or for a breach of natural justice. [6] Some cases suggested that in addition to jurisdictional error certiorari might lie for error of law on the face of the record if the error assumed a jurisdictional dimension. [7] More recent decisions lend support to the view that certiorari might lie in these circumstances for error of law on the face of the record but there is no settled jurisprudence as to what such an error might be when reviewing a justice’s refusal to issue a search warrant for insufficiency. [8] [ 17 ] Assuming for present purposes that it lies either for jurisdictional error or error of law on the face of the record, the jurisprudence leaves no uncertainty that certiorari is a remedy that is used sparingly by a superior court to quash a decision of a statutory decision-maker. [9] It is not an appeal. [10] It does not allow the superior court to substitute its discretion for that of the justice because its assessment of the sufficiency of the informations differs from that of the justice. [11] If it did, it would be an appeal for error, which the prosecution on the motion for certiorari specifically attempted to achieve. [12] It would subvert the distinction between the allocation of statutory decision-making powers to justices of the peace and the reviewing functions of superior courts.

This division of jurisdiction means that a justice is entitled to reach a different view of sufficiency from that of the superior court, provided that the justice’s decision is made within the allocated jurisdiction and not otherwise marred by error on the face of the record. If it is, that decision is not subject to review by certiorari .

It is also not subject to review by some other form of prerogative remedy, such as mandamus , precisely because the premise is that the justice acted within the jurisdiction allocated by law. [13] Further, and by comparison, certiorari does not lie to review a determination of sufficiency for committal at a preliminary inquiry. [14] That principle applies with equal force in a review of decision concerning the sufficiency of an information obtain a search warrant. [ 18 ] As review by certiorari is not an appeal, it bears repetition that the function of the reviewing judge is not to determine whether the justice should have issued the warrants but whether the justice, acting judicially on the information before him, could have issued or refused to issue the warrants. [15] The threshold for intervention by the reviewing judge is high.

The obligation of deference to the justice is strict, even if the reviewing judge (or this Court) might hold a different view of the sufficiency of the information to obtain a warrant. [ 19 ] There is nothing in these appeals to suggest an error of law on the face of the record. Rightly or wrongly, the justice performed the judicial duty assigned by law and concluded that the informations were insufficient. In the absence of blatant misjudgment certiorari affords no remedy to contradict the justice’s assessment or conclusions as error of law on the face of the record.

For this reason the appeal from the decision to quash by certiorari must be allowed. [ 20 ] The appeal from the decision of the Superior Court to issue the warrants that had been refused by the justice must also be

allowed for related reasons. Even if the Superior Court in this case could quash the decisions of the justice by certiorari , that jurisdiction does not imply a corollary jurisdiction to substitute its decision for that of the justice. [16] This is what occurred here. The Superior Court regarded the grant of certiorari as a necessary condition for the exercise of a justice’s jurisdiction. That is a power of appeal upon a determination of error and the respondent’s attempt to characterise the matter as error of law on the face of the record does not make the decision of the Superior Court any less doubtful.

The issuance of a writ of certiora ri extinguishes jurisdictional error or error of law on the face of the record. In this respect it is a negative decision because it nullifies the decision of a statutory decision-maker. But a grant of certiorari does not imply an ancillary jurisdiction to substitute a different decision.

Provided that he or she acts within his or her jurisdiction, a statutory decision-maker may make an error that is not subject to correction. [17] Once again, such a decision would subvert the distribution of jurisdiction between appellate courts and the reviewing functions of superior courts. [ 21 ] Further, there is a procedural point that reinforces the reason to quash the warrants issued by the Superior Court. Rules of pleading do not permit a party to seek in a motion for certiorari a conclusion that is not supported by the juridical nature of the remedy.

To seek the issuance of search warrants in a motion for certiorari effectively contradicts the principle that underscores the concept of non ultra petita . [ 22 ] In this matter the prosecution had two alternatives following the refusal of the justice to issue the warrants. His decisions were not final and did not bind anyone as res judicata .

The prosecution could either present the same or revised informations to another justice of the peace, without seeking relief by certiorari , or it could present the same or revised informations to another tribunal having the jurisdiction of a justice, again without recourse to prerogative relief. [18] To avoid any suggestion of “judge-shopping” the prosecution in either of these cases of “reapplication” would be, to say the least, prudent to advise the justice that a previous application had been refused. [19] It might also be prudent for issuing judges to inquire whether a previous application has been made.

Even if a motion for certiorari was successful to quash a justice’s refusal to issue a warrant, a reapplication is distinct from proceedings in certiorari . There is no foundation in law for the respondent’s suggestion that the motion for certiorari was also, “ de facto ,” a reapplication for the issuance of the warrants refused by the justice. Proviso [ 23 ] The respondent’s invocation of the curative proviso must also fail. The judgment of the Superior Court placed the appellants at risk of significant intrusion upon their interests in privacy upon the execution of the warrants.

This cannot be described as “harmless error” and there is sufficient prejudice to reject application of the proviso. Conclusion [ 24 ] I propose that the Court allow the appeals, dismiss the motion for certiorari and quash the warrants issued by the Superior Court. PATRICK HEALY, J.A.