Focus On

EXTRAORDINARY REMEDIES - Certiorari

Thursday, February 21, 2019 @ 8:32 AM  


Lexis Advance® Quicklaw®
Appeal by McGuigan from a certiorari order quashing a disclosure order. The appellant sought to contest a speeding ticket. The ticket resulted from a traffic officer using a radar device to measure the speed of the appellant's vehicle. The appellant's agent asked the Director of Prosecutions for the Regional Municipality of York for disclosure of the testing and operating procedures from the user manual for the radar device used by the traffic officer. The prosecutor refused the request on the basis that it involved third party record disclosure that should be obtained directly from York Regional Police. The prosecutor invited the appellant to attend its office to view the device manual. The appellant declined and instead moved for dismissal of the charge based on material non-disclosure. The presiding Justice of the Peace ordered the prosecutor to make the disclosure sought. The prosecutor applied for prerogative relief. The Superior Court of Justice granted an order in lieu of certiorari quashing the disclosure order, finding that the user manual was not part of the fruits of the investigation, and was therefore outside of the first party disclosure regime. McGuigan appealed.

HELD: Appeal allowed. The application judge erred in granting the certiorari order. Even if the Justice of the Peace had been wrong to order disclosure, the error would not have been jurisdictional in nature. Under s. 140(1) of the Provincial Offences Act, certiorari orders were confined to situations where an applicant would be entitled to such relief at common law. For parties to a proceeding, as here, certiorari orders were confined to jurisdictional errors. Moreover, certiorari should not have been granted during ongoing proceedings. Nor was there a substantial wrong or miscarriage of justice to address, as required under s. 141(4) of the Act. In any event, contrary to the application judge's decision, the Justice of the Peace did not err in making the disclosure order. Where a prosecutor relied upon a speed measuring device to prosecute an offence, it must, on request, disclose the testing and operating procedures set out in the user manual for that device. This was first party disclosure that did not require a court order and could be provided by the police to the prosecutor as a matter of course, with production to a defendant ultimately fulfilled through a link to material posted online. The certiorari order was set aside, and the Justice's disclosure order was reinstated.

York (Regional Municipality) v. McGuigan, [2018] O.J. No. 6916, Ontario Court of Appeal, J.L. MacFarland, D. Watt and D. Paciocco JJ.A., December 21, 2018. Digest No. TLD-February182019007