Why Procedure Matters
By Hans 'John' Kalina | Originally published June 17, 2020 | Reviewed and updated October 7, 2026
In the fall of 1987, during my first year of law school, I came across reports dealing with practice and procedure in civil courts. I thought it was the most boring subject I had ever seen. By the time I finished law school, I understood why lawyers pay so much attention to it.
A right is of little practical use if there is no fair and effective way to enforce it. Procedure determines how a case reaches a decision maker, what evidence can be considered, how a person responds and how a decision can be challenged. It is not merely paperwork.
Fair process protects substantive rights
Courts and administrative bodies make decisions affecting liberty, immigration status, professional licences, benefits and financial obligations. Their procedures differ. Not every hearing requires the same format, and not every procedural rule is itself a constitutional right. The governing statute, rules, common law and, where applicable, the Charter must be considered together.
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 illustrates the importance of a meaningful opportunity to be heard. The Supreme Court allowed challenges to the refugee-determination procedure then in force. Three judges relied on section 7 of the Charter and three on the Canadian Bill of Rights. The case should not be read as requiring an identical oral hearing in every administrative matter.
A fair process and a reasonable decision are distinct
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 distinguishes review of an administrative decision’s merits from a challenge concerning procedural fairness. Reasonableness is the presumptive standard for merits review, subject to exceptions. It asks whether the decision is justified in its legal and factual context; it is not simply a fresh decision about what the reviewing judge would prefer.
Procedural fairness concerns the process required in the circumstances, including the opportunity to know and answer the case. A reasonable-looking result does not automatically cure a breach of that duty. The available remedy depends on the case. A successful challenge may lead to a new decision rather than the outcome originally requested.
Procedural law changes: the jury-selection example
The original 2020 article discussed Bill C-75 and an Ontario appeal about peremptory challenges in jury selection. That account was overtaken by the Supreme Court’s decision in 2021 and should not be used as current advice.
In R. v. Chouhan, 2021 SCC 26, the majority upheld the abolition of peremptory challenges and held that the amendments applied to jury selections beginning on or after September 19, 2019. It restored the conviction. Challenges for cause remain a different mechanism. A rule’s description as procedural does not eliminate the need to examine when an amendment took effect and whether a later decision changed an earlier interpretation.
Detention review is not an automatic release date
Section 525 of the Criminal Code provides a detention-review process for qualifying accused persons whose trial has not begun within the statutory 90-day period. The duty to apply falls on the person having custody, subject to the provision’s requirements and waiver rules. The calculation and eligibility depend on the circumstances.
The current provision does not promise release after 90 days or a new hearing automatically every 90 days. Continued detention must be justified, and the judge may direct a further hearing under the section. An ordinary bail review and a section 525 hearing should not be treated as interchangeable. Ask counsel which procedure applies.
Deadlines and the right forum matter
An appeal, reconsideration request, judicial review and professional-conduct complaint serve different purposes. A request sent to one body does not necessarily preserve a deadline in another. Nor should a person assume that sending correspondence automatically suspends a removal, penalty or other decision.
Procedure also governs service, filing, disclosure, evidence and the record available on review. A strong argument can be undermined if it is raised in the wrong forum, supported by inadmissible material or delivered too late. Some defects can be corrected, but relief is not automatic.
Practical preparation
Keep the decision, reasons, notices and proof of when they were received.
Identify the correct forum, remedy and deadline promptly.
Keep copies of what was filed or served and confirmation of delivery.
Tell counsel about all parallel proceedings, orders and upcoming dates.
Ask whether a separate stay or interim order is needed while a challenge is pending.
Procedure matters because it gives rights a practical means of protection. Clear rules and fair opportunities to participate are essential; understanding the applicable process is part of preparing a case, not an optional extra.
Related guidance
For advice about your circumstances, contact our office. General information only, not legal advice.