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Oral Hearings in Criminal Law

Large case books and written facta are definitely not uncommon in criminal law.  There are times when a lot of paper is wasted.  In comparison to other areas of law, though, criminal law is not paper heavy at all.  I suspect one of the reasons for this is that criminal hearings (including trials, bail hearings & bail reviews, appeals, constitutional motions, etc.) are done orally, before a Judge, panel of Judges, or Justice of the Peace.  Even routine administrative proceedings such as set-date court are done orally (unlike administrative proceedings in other areas of law which often do not require a court or tribunal appearance).

Oral hearings are something criminal lawyers are used too.  We do them all the time.  Last week in a SLAW post, Ian Mackenzie explored the right to an oral hearing in an administrative law context – When “your day in court” does not include an oral hearing“.  I found it quite fascinating to read how, in many cases, there is no right to an oral hearing.  In the post Mackenzie cited the Supreme Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), a decision I remember learning about in my law school Administrative Law class, which held:

However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved.  The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. (Para. 33)

Mackenzie went on to explain that, where credibility is at issue, it is more likely for an oral hearing to be held.  He cited several Supreme Court cases in making this contention.  When witnesses are testifying in the criminal context credibility is almost always at issue.  In the case of appeals one may argue that written submissions would be entirely appropriate.  There is, however, the potential benefit of being able to explain one’s reasoning before an appellate court, which may not be possible through only making written submissions.

There is one area of criminal law where an oral hearing may not be permitted.  The Parole Board of Canada is not a criminal court but rather an administrative tribunal and, as a result of recent amendments to the Corrections and Conditional Release Act, offenders seeking conditional release may not be provided with an oral hearing.  I did not know this until reading about it in Mackenzie’s piece (prison law is a specialized area) and was quite bothered by it.  Inmates are being detained by the state and, when they have a statutory right to be considered for parole, should be able to make their case, with representation by counsel, before the tribunal who will be deciding on their release.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.