Defining the Principles of Fundamental Justice

AuthorHamish Stewart
In Chapter 2, I considered the question of when section 7 is engaged;
that is, when state action affects an individual’s life, liberty, and secur-
ity of the person to such an extent th at section 7 applies. If section 7
is engaged, the state action must comply with the principles of funda-
mental justice. The onus is on the Charter applica nt to identify a princi-
ple of fundamental justice and to show that t he state action infringes it.
If the Charter applicant can show that the state action does not comply
with the principles of fund amental justice, then she has established a
violation of s ection 7.
But what are “the principles of fundamental ju stice”? On its face, the
phrase is extraordinarily open-ended and ad mits of many possible i nter-
pretations. In this chapter, I consider the Court’s approach to determin-
ing whether a proposed principle qualif‌ie s as a principle of fundamental
justice. In the two following chapters, I provide a comprehensive list of
legal principles that have been recog nized as principles of fundamental
justice. The, generally applicable substantive principles are considered
in Chapter 4. Procedural fairness as a principle of fundamental justice
is the subject matter of Chapter 5.
1) Procedure and Substance
In Re BC Motor Vehicle Act, the Supreme Court of Canada held that the
principles of fundamental ju stice were not limited to principles of pro-
cedural fairne ss or natural justice but also included substantive legal
norms.1 To fully appreciate the signif‌icance of this holding, it is helpful
to consider its legal background.
The phrase “principles of fundament al justice” was little known to
Canadian l aw before the Charter ca me into force. It appeared only in sec-
tion 2(e) of the Bill of Rights, which provided that “no law of Ca nada shall
be construed or applied so as to . . . deprive a person of the right to a fair
hearing in accordance w ith the principles of fundamental justice for the
determination of his r ights and obligations.2 Given that section 2(e) was
expressly directed at the conduct of hearings, it was unsurpri sing that
the phrase was inter preted to refer principally if not solely to procedural
fairness — the administrative law concept of natural justice. The leading
case, though not attempting “a f‌inal def‌inition,” held that the phrase
should be interpreted to mean that “the tr ibunal which adjudicates upon
[a person’s] rights must act fairly, in good faith, without bias and in a
judicial temper, and must give to him the opportunit y adequately to
state his case.”3 Moreover, there is little doubt that the drafters of the
Charter thought that the phrase “principles of fundamenta l justice” was
equivalent to the admini strative law concept of “natural justice.” Some
early drafts of t he Charter used the phra se “due process of law,4 and
the substitution of the phrase “pr inciples of fundamental just ice” was in
part an attempt to avoid the importation of American due process doc-
trine, part icularly its substantive aspects, into Canadian const itutional
1 Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Motor Vehicle Reference], aff’g (1983),
4 CCC (3d) 243 (BCCA); this view was anticipate d in R v Young (1984), 13 CCC
(3d) 1 at 23 (Ont CA).
2 Canadian Bill of Rights, SC 1960, c 44, s 2(e).
3 R v Duke, [1972] SCR 917 at 923, and compare R v Lowry (1972), [1974] SCR 195
(holding that t he Bill of Rights required a court of appeal, wh ich had allowed
the Crown’s appeal f rom an acquittal, to give the acc used an opportunity to be
heard before bei ng sentenced). See also the disc ussion in Walter Surma Tarnop-
olsky, The Canadian Bill of Rights, 2d ed (Toronto: McClelland & Stewa rt, 1975)
at 259–6 4.
4 See, for instanc e, the drafts of October and Novem ber 1979, in Anne Bayef-
sky, ed, Canada’s Constitut ion Act 1982 & Amendments: A Docume ntary History
(Toronto: McGraw-Hill Ryerson, 1989) vol 2 at 575 and 588–89.
Def‌ining th e Principles of Fundamenta l Justice 115
la w.5 Thus, in the early 1980s, it appeared likely that the “principles of
fundamental justice” guaranteed by section 7 were nothing more than
principles of procedural fair ness or natural justice.6 Under this inter-
pretation, section 7 would guarantee that the rules of procedural fair-
ness would be observed where a person’s life, liberty, and security of the
person were at stake: the person would have the right to be heard, the
right to lead evidence, the right to challenge evidence put against her,
the right to have her case hea rd by an impartial t ribunal, and so forth.7
But the principles of fundamental justice would not have included any
guarantees rel ating to the substantive fair ness of the law to which the
individual was subject and probably would not have applied at all out-
side formal judicial or admin istrative proceedings.
In the Motor Vehicle Reference, the Supreme Court of Canada
rejected this procedural underst anding of “fundamental justice.” The
Court considered the validity of a Br itish Columbia statute that imposed
a mandatory period of imprisonment for the offence of driving while
prohibited.8 The statute expressly stated that the offence was “an abso-
lute liability offence in which guilt is e stablished by proof of driving,
whether or not the defendant knew of the prohibition or suspension.”9
Thus, the prosecution was not required to demonstrate that the defend-
ant was at fault in any way, nor was there any way that the defendant
could avoid liability by showing absence of fault. The prosecution did
not have to prove that the defendant was aware of the prohibition or
even that he had been notif‌ied of it; and the defendant’s due diligence
in determining whether or not he was subject to a prohibition was no
defence. The only defences would be those negating the actus reus of
the offence (for example, the defendant was not prohibited or was not
driving) or ar ising after the elements of the offence were est ablished
5 See Sujit Choudhry, “The Lochner Era and Comparat ive Constitutional ism” (2004)
2 Internati onal Journal of Constitution al Law 1 at 15–27.
6 C ompare Peter W Hogg, Canada Act 1982 Annotated (Toronto: Carswell, 1982) at
26 –29.
7 In Singh v Canada (Minister of Employm ent and Immigration), [1985] 1 SCR 177,
one of the earliest c ases, the partie s agreed that the principle s of fundamental
justice included “t he notion of procedural fairne ss” (at 212), and those judges
who decided the ca se on Charter grounds readil y accepted this agreement. The
Court did not expl ain in any detail why procedur al fairness was a pr inciple of
fundament al justice, though there is con siderable discussion of the conte nt of
procedural fai rness.
8 See t he Motor Vehicle Act, RSBC 1979, c 288, s 94, as amended by t he Motor
Vehicle Amendment Act, 1982, SBC 1982, c 36, s 19. The legislat ive history of
this provi sion is brief‌ly describe d in Andrew Petter, The Politics of the Charter
(Toronto: University of Toronto Press, 2010) at 68–71.
9 Mo tor Vehicle Act, above note 8, s 94(2).

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