Fundamental justice

Fundamental justice is a term in Canadian administrative law that signifies those basic procedural rights that are afforded anyone or anybody facing an adjudicative process or procedure that affects fundamental rights. It is used often in the area of Canadian administrative law with the analysis of a decision being patently unreasonable or otherwise being protected from judicial review. It is analogous to the older concepts of due process, natural justice, and Wednesbury unreasonableness.

Related Topics:
Canadian - Administrative law - Patently unreasonable - Judicial review - Due process - Natural justice - Wednesbury unreasonableness

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The term fundamental justice has usually been used in context of Canadian bills of rights. In written law, it can be traced back at least to 1960, when the Canadian Bill of Rights was brought into force by the Diefenbaker government. Specifically, section 2(e) of the Canadian Bill of Rights stated that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." According to the legal scholar Walter Tarnopolsky, the wording of the clause sparked some controversy among those drafting the Bill. Some wanted the words "natural justice" in the place of "fundamental justice," as "natural justice" was indeed a more common phrase with judges and authors. "Fundamental justice" was a more obscure alternative with these figures (other such alternatives include "universal justice"). Still, "fundamental justice" was chosen, and in the case Duke v. The Queen (1972), it was ruled that fundamental justice was, for the purposes of this section, merely equivalent to natural justice.

Related Topics:
Bills of rights - 1960 - Canadian Bill of Rights - Diefenbaker - Duke v. The Queen - 1972

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The Canadian Bill of Rights, however, was never a constitutional instrument, but rather an ordinary statute. Hence, it was not until 1982 when the term fundamental justice was first constitutionalized. The phrase was included in section 7 of the new Canadian Charter of Rights and Freedoms, which asserted that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." To limit the rights to life, liberty and security of the person, the authors of the Charter specifically chose the term "fundamental justice" over "due process" because they believed the term "fundamental justice" would still be interpreted to mean conventional "natural justice." "Due process" was rejected because in the United States, use of that term in the constitution led to judges expanding its meaning (see Lochner era) in ways the Canadian government felt would be undesirable. As constitutional scholar Peter Hogg points out in his book Constitutional Law of Canada, however, the new wording of section 7 removed the context of the "fair hearing" found in the Canadian Bill of Rights, which meant the definition of fundamental justice was now ambiguous and could still be further developed by Canadian courts. This is indeed what happened.

Related Topics:
Constitution - Statute - 1982 - Section 7 - Canadian Charter of Rights and Freedoms - Rights to life - Liberty - United States - Lochner era - Peter Hogg

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Since the 1985 Supreme Court of Canada decision Re B.C. Motor Vehicle Act, the meaning of the words "fundamental justice" used in Section 7 of the Charter has been greatly expanded and encompasses much more than mere procedural rights. (For principles of fundamental justice developed in section 7 case law, see Section Seven of the Canadian Charter of Rights and Freedoms.) Still, the term fundamental justice might have some meaning in Charter case law even outside section 7. In the 2003 Charter case Doucet-Boudreau, some Supreme Court justices wished to narrow the scope of the remedial section 24 by citing fundamental justice, specifically by citing the "functus officio" rule. (In this case, a lower-court judge, after having found the claimants' section 23 rights were violated, used section 24 to demand that the government, while working to repair the infringement of the right, continue to report to him after his ruling). However, the Supreme Court justices who wished to narrow the scope of section 24 with fundamental justice formed the minority of the panel, and the earlier decision was upheld.

Related Topics:
1985 - Supreme Court of Canada - Re B.C. Motor Vehicle Act - Section Seven of the Canadian Charter of Rights and Freedoms - 2003 - Doucet-Boudreau - Section 24 - Functus officio - Section 23

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