Pro Se Litigant
The Canadian Criminal Code, enacted by Parliament, applies uniformly to each province and territory in Canada. A very few exceptions are written into the Code, and these refer mainly to the newest territory of Nunavut. As a result, precedents in criminal law apply uniformly across the country, irrespective of the province where the trial was held.
Another important set of rules – the Queen's Bench Rules of Court – are enacted at the provincial level. Expect some individuality between regions for these Rules, starting with their title. The Rules set out detailed protocols which the court expects a lawyer or self-represented client to follow in achieving the various steps of a legal case.
The Rules are used in both civil and criminal cases. Don't be deterred if the word ‘civil’ appears in the title (for instance, Ontario calls their guide the Rules of Civil Procedure). While differences in procedure exist between civil and criminal law, there are also areas of significant overlap.
Courts now publish their Queen's Bench Rules online, usually the basic guide (the formal clauses) without annotation. But an enriched version exists, called the Annotated Rules, which expands on the basic guide, adding numerous references to legal authorities that interpret each Rule – precedents whose main or secondary agenda was to develop some aspect of the Rule in response to a challenge.
Judges and lawyers favor and study the annotated version. Self-represented clients should as well. It armors you for the courtroom, giving facts and substance on tap if your legal arguments are challenged by the opposing party — as they will be.
Each province has is own ‘culture’ of court rules and protocols. Therefore read the guide specific to your region.
The Queen's Bench Rules are written by the local judges of a province, each inventing their own numbering system. Even when the content of a Rule is similar or identical across provinces, the section and clause numbers will vary widely. Be aware of this when you search for material related to a particular Rule:
In both civil and criminal law, knowledge of some procedural Rules is vital. Below are three examples: writing an Affidavit; filing an application called a Notice of Motion; and requesting Judicial Review.
If you are representing yourself and need to make an application to the court, or if the judge invites you to make an application, do not respond with a simple letter — it does not bind the court. Instead you must file a Notice of Motion.
The Motion is a statement of what you request from the court, plus the grounds (reason or basis) for your request. The grounds divide into two strict categories: (1) Facts describe your personal experience, the events and consequences. (2) Law tenders the precedents and statutes, called legal authorities, which support your view. When events are complex, attach a separate sworn Affidavit with evidence exhibits as proof. When law arguments are complex, attach a separate Law Brief.
The title Notice of Motion is used by most provinces, but some have alternate names for the identical action: British Columbia says Petition; Alberta says Originating Application; Nova Scotia calls it an Interlocutory Application.
The Motion is a backbone of the court process. It is used for applications in both civil and criminal cases, during Hearings and Trials, and in all venues – Provincial Court, Queen's Bench or Superior Court, Appeal Court, and Canadian Supreme Court. It is worthwhile to learn to write an effective Motion.
Learn the formal structure: How to Write a Notice of Motion
An Affidavit may and should describe your personal experience – what you directly saw and heard – and your knowledge of the state of mind of the other party. You may include evidence (concrete details), but not facts or conclusions; even lawyers falter over that fine distinction. It generally means: place your legal arguments in a separate Law Brief.
An Affidavit that seeks a final order may contain only what you would be permitted to say in evidence at trial. In interlocutory matters, the rules broaden: Then, your Affidavit can go beyond personal knowledge to include statements of ‘information and belief’, provided you disclose the source of the information, and the court gives leave.
An Affidavit requires standard clauses at the beginning, which vary by province. A formal section at the end, called the Jurat, is where the oath is sworn. You may attach proof such as documents and photos; these must be stamped as Exhibits and duly sworn. In each province, the Queen's Bench Rules of Court instruct lawyers and clients on how to write an acceptable Affidavit. The requirements are detailed. One example:
Alberta Q.B. Rule 13.18: Form and Contents of Affidavits and Exhibits
When a judge makes a serious error that swerves a case down the wrong path, then that ruling is subject to review. Examples of serious errors which are reversible on review: When the judge ignores or expunges legitimate evidence; and jurisdictional error where the judge fails to observe mandatory provisions of the Civil Statutes or the Criminal Code. Such actions from an experienced judge often reflect a deeper problem – bias.
The way to challenge such errors is with an application for Certiorari or Mandamus. These and other Extraordinary Remedies are covered in the Canadian Criminal Code, sections 774 to 784. The procedures are further defined in the Queen's Bench Rules of Court under the heading Judicial Review. A well-written example:
Nova Scotia Q.B. Rule 7: Judicial Review
Whether you need to appear in Chambers, serve documents on other parties, or perform any other useful step connected with a Courthouse, you must abide by the Queen's Bench Rules of Court for your region. These Rules are not optional; they are mandatory for lawyers and self-represented clients alike.
The Rules instruct on the form, content, length, and timing of each document or action. In each province and territory the Rules have a different title, but generally the types are:
|Civil Rules||Despite their name, Civil Rules apply to both civil and criminal matters.|
|Criminal Rules||Small set of supplementary Rules unique to criminal trials.|
|Practice Directives||Administrative guidance: Instructions that clarify and elaborate upon each Rule.|
|Annotations||Annotations translate theory into practice: Also called case law or precedents, these real-life rulings give the history of how courts have interpreted each Rule.|
Tuum Est - It Is Up To You
The song I came to sing
remains unsung to this day.
I have spent my days in stringing
and in unstringing my instrument.
The time has not come true,
the words have not been rightly set;
only there is the agony
of wishing in my heart…
Nobel Prize Literature 1913
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