Defining the Principles of Fundamental Justice

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 97-125

97

CHAPTER 3

DEFINING THE

PRINCIPLES OF

FUNDAMENTAL JUSTICE

A. INTRODUCTION

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 that section 7 applies. If section 7

is engaged, the state action must comply with the principles of funda-

mental justice; if the Charter applicant can show that the state action

does not comply with the principles of fundamental justice, then she

has established a violation of section 7.

But what are “the principles of fundamental justice”? On its face,

the phrase is extraordinarily open-ended and admits of many pos-

sible interpretations. In this chapter, I consider the Court’s approach

to determining whether a proposed principle qualif‌ies as a principle of

fundamental justice. In the two following chapters, I provide a compre-

hensive list of legal principles that have been recognized as principles

of fundamental justice. The major, generally applicable substantive

principles are considered in Chapter 4. Procedural fairness as a prin-

ciple of fundamental justice is the subject matter of Chapter 5.

FUNDAMENTAL JUSTICE

98

B. THE PRINCIPLES OF FUNDAMENTAL

JUSTICE: METHODS AND SOURCES

1) Procedure and Substance

In Re BC Motor Vehicle Act (Motor Vehicle Reference), the Supreme Court

of Canada held that the principles of fundamental justice were not lim-

ited to principles of procedural fairness or natural justice but also in-

cluded substantive legal norms.1 To fully appreciate the signif‌icance of

this holding, it is helpful to consider its legal background.

The phrase “principles of fundamental justice” was little known to

Canadian law before the Charter came into force. It did, however, ap-

pear in section 2(e) of the Bill of Rights, which provided that “no law of

Canada shall b e construed or applied so as to . . . deprive a person of the

right to a fair hearing in accordance with the principles of fundamen-

tal justice for the determination of his rights and obligations.”2 Given

that section 2(e) was expressly directed at the conduct of hearings, it

was unsurprising that in this context the phrase was interpreted to

refer to procedural fairness — the administrative law concept of nat-

ural justice. The leading ca se, though not attempting “a f‌inal def‌inition,”

held that the phrase should be interpreted to mean that “the tribunal

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 op-

portunity adequately to state his case.”3 Moreover, there is little doubt

that the drafters of the Charter thought that the phrase “principles of

fundamental justice” was equivalent to the administrative law concept

of “natural justice.” Some early drafts of the Charter used the phrase

“due process of law,”4 and the substitution of the phrase “principles of

fundamental justice” was in part an attempt to avoid the importation

of American due process doctrine, particularly its substantive aspects,

1 Re BC Motor Vehicle Act,[1985] 2 SCR 486 [Motor Vehicle Reference], aff’g (1983),

4 CCC (3d) 243 (BCCA); this view was anticipat ed 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 th e Bill of Rights required a cou rt of appeal, which allowed

the Crown’s appeal f rom an acquittal, to give the acc used an opportunity to b e

heard before bei ng sentenced). See also the disc ussion in Walter Surma Tarnop-

olsky, The Canadian Bill of Rights, 2d ed (Toronto: McClelland & Stew art, 1975)

at 259–6 4.

4 See, for instanc e, the drafts of October and Novem ber 1979, in Anne Bayefsky,

ed, Canada’s Constit ution Act 1982 & Amendments: A Doc umentary History (To -

ronto: McGraw-Hill Ryers on, 1989) vol 2 at 575 and 588–89.