Some Features of Pre-Confederation Judicial Review in Canada

The supervisory jurisdiction is a core function of Canada’s superior courts. It cannot be exercised by another body, nor can access to the supervisory jurisdiction be precluded, as this superintending and reforming power has a solid constitutional foundation in s. 96 of the Constitution Act, 1867. (The sweep of these propositions will be in issue in a case to be heard in the Supreme Court of Canada in November: Yatar v. TD Insurance Meloche Monnex. I will be appearing for the intervener Canadian Telecommunications Association.) Cases involving the scope of s. 96 require a close focus on the powers exercised by the courts in 1867, when the Constitution of Canada was drafted and adopted.

I had thought that judicial review in 1867 would be closely tethered to the notion of “jurisdiction”, as this came (in the 20th century at least) to be the organizing principle of the prerogative writ of certiorari, itself the principal means used by the superior courts to control so-called inferior tribunals. “Jurisdiction” certainly features in the certiorari cases available in electronic databases. A good example is provided by Hespeler v. Shaw (1858), 16 U.C.Q.B. 104. H had been convicted of working on a Sunday (the Lord’s Day…) in contravention of a statute making it unlawful for “any merchant, tradesman, artificer, mechanic, workman, labourer, or other person whatsoever, to do or exercise any worldly labour, business, or work of their respective ordinary callings upon a Sunday”; there was an exception for the conveying of travellers, or her Majesty’s mail, selling drugs and medicines, and such other works of necessity, and also works of charity. Robinson CJ gave a clear exposition of the classic law of jurisdictional error:

If, for instance, the justices had convicted a tinsmith, or a shoemaker, of working at his ordinary calling on the Lord’s day, and the conviction had been affirmed on appeal after a trial by a jury, we should not have allowed a certiorari in order to have it determined here whether the jury had before them sufficient evidence of the offence. But if, on the other hand, a driver of a stage-coach had been convicted of working at his calling, by conveying her Majesty’s mail, which the statute expressly allows to be done on a Sunday; or if a clergyman had been convicted for preaching on a Sunday, or the sexton for ringing the bell, or a doctor for visiting a patient, which would all be works within their ordinary calling; such a conviction, though confirmed upon appeal, might be removed into a superior court by certiorari, in order to obtain the opinion of that court whether any such case as we have mentioned was within the statute (at para. 6).

Certiorari was not available to question the jury’s findings of fact, or the sufficiency of evidence (see also, e.g. Re Miller (1857), 15 U.C.Q.B. 244), but H was entitled to apply to the superior court to have the conviction quashed for excess of jurisdiction even though he had already exercised a right of appeal to the quarter sessions (at para. 6; see also R. v. York Justices (1827), 1 N.B.R. 108). Here, the conviction was quashed for, in essence, failing to state any offence within the statute: “It does not state that it was his own hay that the defendant was raking and hauling: it does not state that he was working as a labourer for others: it does not call him a farmer, nor state such facts as shew that he was a farmer following his ordinary calling in getting in his own crops” (at para. 8). It is fair to observe that the boundaries of law, jurisdiction, fact and evidence proved themselves somewhat nebulous, as the defect was as much one of the absence of facts and evidence on salient points as a misinterpretation of the law:

If a farmer so acting would come within the statute as following his ordinary calling of a farmer, yet the conviction does not state such a case in terms, nor state facts from which we can infer it; but it is indispensable that some offence should be charged in the terms of the statute (at para. 9, emphasis added. See by contrast R. v. Stewart (1866), 25 U.C.Q.B. 327 where it was held not to be necessary to provide further particulars explaining whether the “distress” in question related to unpaid rent or penalties).

Another nice example is R. v. York Justices (1827), 1 N.B.R. 108, where an assessment against a parish for the construction and maintenance of a poor house in the county of York was quashed: only parishes with paupers in the house were liable to be assessed and the Justices therefore had no jurisdiction to assess a parish with no paupers in the house. This clearly involved close consideration of factual matters. Similarly, in Ex Parte Weade (1856), 8 N.B.R. 307, Carter CJ relied heavily on affidavit evidence (and the absence of affidavit evidence in support of a competing position) to conclude that the Commissioners of Highways had exceeded their jurisdiction by failing to record the totality of a road they had laid out (which had implications for the damages assessed as a result of the road).

However, jurisdictional error was not the only target of the supervisory jurisdiction. Consider this authoritative statement of the scope of certiorari from Boston v. Lelievre, 1864 CarswellQue 4, a case in Quebec’s Court of Queen’s Bench:

In principle, certiorari lies to all Courts where the Superior tribunal can administer the same justice as the Court below, and also, though the cause cannot be determined in the higher tribunal, yet this writ may be granted if the inferior tribunal have no jurisdiction over the matter, or do not proceed therein according to the provisions of law; hence, through the jurisdiction of the Superior Court is not taken away except as above, its power is limited to judicial proceedings, and therefore the certiorari does not go to try the merits of the question, but to see whether a limited jurisdiction has exceeded its bounds and has not acted in conformity with the law (at para. 15, per Badgely J, emphasis added).

Inferior tribunals have only “limited jurisdiction”, which it is the role of the superior courts to confine them to. An inferior tribunal must respect its “bounds” and act “in conformity with the law”; it might have “no jurisdiction” at all over a matter or commit a reviewable error by failing to “proceeding therein according to the provisions of law”. For example, in R. v. St John (City) (1856), 8 N.B.R. 361, an assessment levied on property holders to pay for a sewer was quashed because of a failure to give statutorily-required notice.

Fundamentally, certiorari functioned so as to ensure the lawfulness of inferior tribunal decision-making. Courts presumed, moreover, that legislatures did not intend to restrict access to certiorari (see e.g. Ex Parte McNeil (1857), 8 N.B.R. 493). For example, finality clauses (stating that a particular decision was “final”) were strictly construed: “even where a statute declares that the decision of the Justices shall be final, and that no other Court whatever shall intermeddle therewith; the effect of that is only to make the Justices’ decision final as to matters of fact, and the jurisdiction of the Court of Queen’s Bench by certiorari is not taken away” (R. v. York Justices (1827), 1 N.B.R. 108). And, as noted, this nominal finality on matters of fact, did not exclude the possibility of certiorari being used to quash a decision where a reviewable error had been established: it was, in effect, a warning to reviewing courts not to reweigh the evidence.

You will notice, however, that the superior court’s jurisdiction was “limited to judicial proceedings”, for in the nineteenth century — and well into the twentieth — certiorari was only available in respect of “judicial decisions”. That limitation is now extinct. The scope of judicial review has evolved over time, with the prerogative writs being displaced by general principles of reasonableness and fairness: the means may have changed but the ultimate end of ensuring lawfulness remains the same.

As now, there were accepted bases on which the courts could exercise their discretion to refuse a remedy. In Ex parte Gerow (1859), 9 N.B.R. 269, for example, a ratepayer had delayed in challenging an assessment and, having sold his property in the meantime, certiorari should not issue:

this application should have been made in Hilary term; and that having allowed his property to be sold, and a term to elapse without taking any proceedings, the applicant was now too late, though if the application had been made in proper time, the assessment would have been set aside. That where there had been so much delay, the certiorari ought not to be granted, unless the law imperatively required it.

But in Ex Parte McNeil (1857), 8 N.B.R. 493, Parker J declined to exercise this discretion on the basis that the amount in issue was insignificant: “such relief should not be denied in a case like the present, which, though trifling in its amount, involves a serious question as to the rights of real property and the construction of acts of Assembly”. Note, similarly, that in Hespeler the fact that H had already appealed his conviction was no barrier to seeking certiorari: the ability to quash unlawful decisions was a fundamental feature of superior court jurisdiction, not lightly to be refused.

In short, then, pre-Confederation certiorari practice aimed to ensure that inferior tribunals remained within the bounds of legality, looked askance at legislative attempts to limit judicial review and developed principled grounds for exercising discretion to refuse a remedy.

This content has been updated on August 23, 2023 at 10:16.