Substantive and Procedural Law

Background History

Laws have always contained both substantive and procedural elements. Legal historians often point to 18th-century English philosopher Jeremy Bentham’s book Of Laws in General as the first to propose the explicit dichotomy. However, discussions of the ends and means of law predate Bentham. The dichotomy was further examined by the British legal philosopher H.L.A. Hart. His book The Concept of Law (1961) distinguished between what he called “primary” (substantive) and “secondary” (procedural) legal rules.

Substantive-Procedural Dichotomy

The substantive-procedural dichotomy is not applied by jurists or lawmakers in a formal sense. For instance, civil law and criminal law are distinguished by different courts and sets of judicial rules. But there is no such division between substantive and procedural law. Rather, jurists and legal scholars use the substantive-procedural division as a conceptual framework. It is especially used to lay out the scope of judicial prerogative — that is, the range of issues on which courts can and cannot make decisions.

Courts have long been understood to have more jurisdiction over procedural matters than substantive ones. The Canadian Charter of Rights and Freedoms, for instance, epitomizes the concept of substantive law. It literally lays out rights and responsibilities for individuals, groups and the state. Judges are expected to enforce Charter rights and not to challenge them. But courts are empowered to make decisions on procedural questions around how Charter rights should be enforced.

At the same time, the dichotomy has also been critiqued by many as unhelpful or confounding. In particular, the concept of fairness is held as a primary objective of the legal system in liberal regimes such as Canada’s. But fairness itself can only be enforced through specific procedures and norms. One example is the “reasonable doubt” standard in criminal law.

Substantive and Procedural Law in Canada

The concepts of substantive and procedural law have in some ways followed a unique pathway in Canada since the adoption of the Charter in 1982. In essence, courts have recognized that it is not viable to rule only on matters they deem procedural in nature. This is because procedures can impact how substantive rights are applied. Likewise, the rigid enforcement of procedural rules can lead to outcomes that are inappropriate or unfair. As a result, courts have allowed certain procedural rules to become more flexible. They have also extended judicial discretion in some areas.

Legal scholars Ofer Malcai and Ronit Levine-Schnur have studied the impact of this trend on rules around criminal evidence. These rules should be somewhat flexible. But judges should still have a method for decision-making. So Malcai and Levine-Schnur proposed a framework that would 1) determine whether substantive or procedural norms should be preferred when the two are in conflict (what they call “normative priority”); and 2) determine whether a court action can be justified by procedural norms or by the fairness of the outcome (what they call “justification priority”).

Standard of “Reasonableness”

Other legal scholars have analyzed the problem of procedural and substantive law in relation to questions of administrative law. These are cases in which courts review decisions made by other branches of government. Under section 18 of the Federal Courts Act, the judiciary technically holds the final say over the legality of other governmental activities. But this raises concerns about excessive judicial power. So jurists and scholars have long agreed that the courts should have some sort of doctrine for distinguishing when they should willingly limit their own power by deferring to the other branches. (US courts used to hold such a doctrine — known a Chevron deference — following a 1984 Supreme Court ruling. But it was overturned in a 2024 decision that vastly strengthens judicial supremacy over other branches of government.)

In Canada, an important precedent on deference was set by the 2008 case Dunsmuir v. New Brunswick. The lawyer, David Dunsmuir, contested his firing by the New Brunswick Department of Justice. The Supreme Court ruled that administrative decisions such as Dunsmuir’s firing should be ruled either on the basis of “correctness” in the law or a more abstract standard of “reasonableness.” So long as an administrative decision is not illegal (i.e., in violation of the correctness test), it can stand if the court deems it reasonable. However, ambiguities remained under the new doctrine. Legal scholar John M. Evans described the doctrine as “the triumph of reasonableness.”

The standard of reasonableness was then clarified in a 2019 ruling: Canada (Minister of Citizenship and Immigration) v Vavilov. In it, the Toronto-born man Alexander Vavilov contested the federal government’s denial of his citizenship rights. Here, the court ruled that administrative decisions pass the test of reasonableness so long as the justification is logical and based on valid facts. The test should begin from an examination of the administrative rationale for a decision. But the onus for demonstrating unreasonableness falls on the applicant or plaintiff.

Hence, in the context of reasonableness review, courts and litigants should accept that “‘[a]dministrative justice’ will not always look like ‘judicial justice’.” These decisions demonstrate how Canadian courts have attempted to prioritize the principle of substantive fairness through procedural flexibility.

(See also Court System of Canada; Judiciary in Canada; Law Enforcement.)