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Why Procedure Matters

17 June, 2020

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina


Back in the fall of 1987, when I was in my first year of law school, I came across legal reports dealing with Practice and Procedure in Civil Courts. I remember looking through the cases and thought to myself, this is the most boring subject I’ve ever seen. Why would anyone ever read this stuff? By the time I finished law school, I understood that lawyers are all about process and procedure.

We understand that we have certain rights. The right to free speech, religion, assembly, association, to vote and others are all enumerated in the Canadian Charter of Rights and Freedoms. But the how we exercise and protect those rights is also important. The procedure used to enforce our rights is equally important and also enumerated in sections 7 to 15 of the Charter.

Procedure is important because it is how we enforce our rights in a court or a tribunal. Procedure gets us through the door. Administrative tribunals exist in order to obtain a status from government. Examples of this are a driver’s license, a pension, a favourable tax ruling or refugee status. Sometimes a government agency will design a procedure for Canadians to obtain a particular status that is not constitutional. In 1985, the Supreme Court of Canada ruled that the Canadian government’s procedure for deciding who is a refugee violated the principles of fundamental justice in section 7 of the Charter. The case of Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177 forced the Government of Canada to redesign the entire procedure for determining who is a Convention Refugee in Canada.

More recently, in March, 2020, the Federal Government announced and enacted legislation implementing the Canadian Emergency Relief Benefit to ease the adverse economic impact of the COVID-19 pandemic restrictions. The procedures to apply for the benefit were nebulously outlined on the Canada Revenue Agency website. Eight Million applications were processed, and people received money in their bank accounts. Then in June, the Government announced that it would criminalize those people who received money that they were not entitled to. Within a matter of days 190,000 people signed onto the website to repay the benefit, undoubtedly, some of those people simply because they were unsure as to whether they qualified for it. Ouch. Sometimes the procedure which seems simple and easy, comes with a hidden catch. An effective and efficient procedure is transparent and understandable. Some Governmental procedures fail to meet that standard.

Governments have made changes in procedures for criminal matters as well. Sections 7-14 of the Charter stipulate legal rights in criminal proceedings. Recently, on June 21, 2019, the Government of Canada’s Bill C-75 came into force. The bill made massive changes to the criminal code including many procedural provisions. Canadian Courts have made many decisions challenging the constitutionality of changes the Federal Government legislated. For example:

  • Preliminary inquiry: In v. R.S., 2019 ONCA 906 the court stated that an accused person who had elected to proceed with a preliminary inquiry prior to September 19, 2019 was procedurally entitled to receive the benefit of a preliminary inquiry. The government removal of the procedural right was prospective and not retrospective in effect. The result is that thousands of accused people retain the right to a preliminary hearing that Bill-75 attempted to take away from them.
  • Jury selection: In v. Pardeep Singh Chouhan, 2020 ONCA 40 the court stated that the amendment eliminating peremptory challenges applies prospectively, the Court provided guidance on when an accused has a vested right to a trial by judge and jury. Abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation.
  • Bail review: v. Myers, 2019 SCC 18the Supreme Court ruled that detainees have the right to a substantive review of their detention every 90 days. The Court ruled that the Crown bears the onus of bring the accused to Court for this purpose. Prior to this ruling, an inmate was required to file an application in Superior Court if they wished the Court to review the reasons for their detention.

While the federal government has jurisdiction in criminal matters, the province has jurisdiction over civil matters such as disputes between corporations or individuals. In Ontario, the lawsuits are governed by section 108 of the Courts of Justice Act. Currently, the Attorney General for Ontario is proposing to eliminate jury trials for civil cases. This would be a major change in how decisions are made for liability and rewards which represent an important facet of our legal system. While section 11(f) of the Charter protects the right to a jury trial in the more serious criminal cases, no such protection is afforded litigants in civil matters.

Procedure matters. It determines how disputes and issues are resolved. It allows us to obtain benefits and rights in a predictable orderly manner. Procedure affects all of us in our daily lives. Procedural rights deserve to be recognized for the important place that they service in our life to protect the substantial rights that we have come to expect and enjoy in Canada.

This easy reading blog was posted by H. J. Kalina on June 16, 2020. Mr. Kalina can be reached through www.lawyer4u.ca

Tags: criminal defence, legal advice

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