WPIS TYGODNIA: Reading about retroactive application of procedural law

EXERCISE 1

Read the source text below and answer the following questions:

EXERCISE 2

Find in the source text below expressions which mean:

SOURCE TEXT

SOURCE: R. v. Gallego, 1993 CanLII 5597 (ON SC)

„Issue

[5]   The question to be determined is whether, if I ultimately conclude that the intercepted private communications were not obtained lawfully, the evidence is automatically excluded, or whether the issue of admissibility would then be governed by ss. 7, 8 and 24(2) of the Charter.

[6]   It may seem premature to determine the issue before deciding whether the communications were lawfully obtained, but because the determination of this issue will affect the issues to be addressed on the voir dire, all counsel seek a ruling at the outset of the proceedings so that the ground rules the conduct of the voir dire will be clear.

Analysis

(A) The distinction between “substantive law” and “procedural law”

[7]   In Howard Smith Paper Mills, Ltd. v. The Queen (1957), 1957 CanLII 11 (SCC), 118 C.C.C. 321, 8 D.L.R. (2d) 449, [1957] S.C.R. 403, the Supreme Court of Canada dealt with the distinction between substantive law and what was known as “adjective” law. The court agreed that substantive law defines rights, duties, and liabilities, while “adjective” law defines matters of “procedure, pleading and proof”. Today, the distinction is more commonly defined in terms of the difference between “substantive law” and “procedural law” although procedural law includes matters involving the admissibility of evidence. I am therefore satisfied that the amendments in Bill C-109, which may affect the admissibility of intercepted private communications, are procedural in nature.

(B) Retrospectivity of procedural law

[8]   The general rule is that there is a presumption in favour of retrospective operation of procedural amendments, even where the procedural amendments mean that previously inadmissible evidence is rendered admissible. An example of the operation of this rule is the decision of the Supreme Court of Canada in Smith, supra. In that case, the court was concerned with a statutory provision which made previously inadmissible evidence admissible. The question was whether the new provision was retrospective, thereby making the evidence admissible at trial even though the rule was not in effect when the offence was alleged to have been committed.

[9]   The court held that the legislation was retrospective and that the evidence was admissible.

[10]           Another example of the operation of the retrospectivity rule where a legislative amendment has rendered previously inadmissible evidence admissible is the decision of the Supreme Court of Canada in R. v. Wildman (1984), 1984 CanLII 82 (SCC), 14 C.C.C. (3d) 321, 12 D.L.R. (4th) 641, [1984] 2 S.C.R. 311. In that case, the appellant was charged with murder. At the time of the offence, the common law rule was that a spouse was not a competent and compellable witness for the prosecution. Prior to the retrial, however, Parliament amended the Canada Evidence Act, R.S.C. 1970, c. E-10, to permit such testimony. The Supreme Court held that the amendment was procedural, and had retrospective application. (…)

(C) Exceptions to the retrospectivity rule

[12]           The rule that procedural amendments must be given retrospective effect is not absolute, however. It will not apply to restrict the admissibility of evidence which was lawfully obtained even though by the time of trial, legislative amendments had change the rules. In such a case, the amendments, even though procedural in nature, are not retrospective. The rationale for the exception to the general rule is that the authorities could not be expected to comply with a law that was not in effect at the time the evidence was gathered. Examples of this exception are R. v. LeSarge (1975), 1975 CanLII 1245 (ON CA), 26 C.C.C. (2d) 388 (Ont. C.A.), where the Crown was permitted to tender intercepted private communications which had been obtained without a judicial authorizations because no such legislative requirement was in effect at the time of the investigation, and R. v. Ali (1979), 1979 CanLII 174 (SCC), 51 C.C.C. (2d) 282, 108 D.L.R. (3d) 41, [1980] 1 S.C.R. 221, in which it was held that the Crown was not required to comply with a recently enacted provision which changed the proof requirements for the drinking and driving offence of “over 80”.

[13]           The rule that procedural legislation is retrospective will also not be applied when a person has gained a right not to be prosecuted through the operation of a limitation period. In those circumstances, legislation removing the limitation period will not remove the acquired right not to be prosecuted: R. v. Ford, (Ont C.A.), released August 26, 1993 (unreported) [since reported 1993 CanLII 1295 (ON CA), 106 D.L.R. (4th) 325, 65 O.A.C. 40, 15 O.R. (3d) 171].

[14]           Finally, the rule will not be applied where the procedural changes are inextricably bound up with substantive provisions.”

EXERCISE 3

Practise the vocabulary from Exercise 2 using the following flashcards:

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Anna Młodawska

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