Procedural Fairness as a Principle of Fundamental Justice
| Author | Hamish Stewart |
| Pages | 274-348 |
274
CHA PTER 5
PROCEDUR AL FAIR NESS
AS A PRINCIPLE OF
FUNDAMENTAL JUSTICE
A. GENERAL PRINCIPLES
1) Fundamental Justice Requires a Fair Process
It is a principle of fundamental justice that the procedure for making
a decision that affects a per son’s life, liberty, or security of the per-
son must be procedurally fair. This principle has been widely accepted
from the beginni ng of the Charter era.1 If the process is “fundamenta lly
unfair to the affected person,” then section 7 is violated.2
For a process to be fair, it must at a minimum satisfy the admin-
istrative law principles of natural justice.3 But, as in the admin istra-
tive law doctrine on which the const itutional concept of procedural
fairness d raws, the content of the requirement of procedural fairness
varies with t he context and the nature of the interest a ffected.4 In Baker
v Canada (Minister of Citizenship and Immigration), the leading case on
1 See, for example, Singh v Canad a (Minister of Employment and Immigration),
[1985] 1 SCR 177 at 212–13 [Singh], and the discu ssion in Chapter 3, Section B.
2 Charkaoui v Cana da (Citizenship and Immigration), 2007 SCC 9 at para 22
[Charkaoui].
3 Pearlman v Manitoba Law Societ y Judicial Committee, [1991] 2 SCR 869 at 883
[Pearlm an]; Mooring v Cana da (National Parole Board), [1996] 1 SCR 75 at para 38
[Mooring].
above note 3 at 884– 85.
Procedural Fa irness as a Principle of Fu ndamental Justice 275
the duty of fairness i n administrative law, the Supreme Court of Can-
ada provided a non-exhaustive li st of factors relevant to the content of
the duty:
• “the nature of the decision being made and the process followed in
making it”;
• “the nature of the statutory scheme and the ‘terms of the statute pur-
suant to which the body operates’”;
• “the import ance of the decision to the individual or ind ividuals
af fecte d”;
• “the legitimate expectations of the per son challenging the decision”;
• “the choices of procedure made by the [decision maker] itself, pa r-
ticularly when the statute leaves to t he decision-maker the ability
to choose its own procedures, or when the [decision maker] has an
expertise in determining what procedures a re appropriate in the
ci r cu mst an ces .”5
In Suresh v Canada (Minister of Citizenship and Immigration), the Court
held that these five factors were equally relevant to determining the
content of the duty of fairness under section 7 of the Charter.6
Thus, as a general rule, the considerations relevant to determining
the content of the duty of fairness are t he same whether or not the
person affected has a const itutionally protected interest at stake. But
the constitutional duty of fair ness cannot (in the absence of a section
1 justification or section 33 override) be ousted by express st atutory
language, whereas the common law duty c an.7
The principle of procedural fairness, even when il luminated by the
five specific factors identified in Baker a nd Suresh, are very general and
abstract. The rest of this chapter explains how they have been made
more specific in particular contexts.
7 Compare Ocean Port Hotel Ltd v British Colum bia (General Manager, Liquor
Control and Licensing Branch), 2001 SCC 52. The decision maker ’s degree of
independence did not h ave to satisfy the constit utional standard for procedu ral
fairnes s because the applicant’s cons titutionally protected inter ests were not at
stake and bec ause the statute clearly did not re quire the decision maker to b e
independent. On t he question of whether the stand ard of review is affected by
the fact that con stitutional interest s are at stake, see Chapter 2, Sec tion B(3).
FUNDAMENTAL JUSTICE276
2) Fundamental Justice and Fair Hearings
a) Fundamental Justice Does Not Always Require an Oral Hea ring
The principles of fundamental just ice do not necessarily requi re an oral
hearing. In extr adition matters, for example, the minister of justice’s
surrender decision affects t he liberty interest and must therefore com-
ply with the principles of fundamental justice; but the minister’s deci-
sion is typically m ade on the basis of a paper record, with t he benefit of
written advice of law yers from the Department of Justice and wr itten
submissions from the person sought. This procedure has been held to
comply with section 7 (see Section C(1)(c), below in this chapter). But
the principles of fundamental justice do require an oral hearing in cer-
tain circum stances; for example, “where a serious issue of credibility is
involved” in making the decision,8 or where the person af fected will be
detained for a significant per iod of time.9
b) Hearings and Fundamental Justice
If an oral hearing i s required, to comply with section 7, the hearing
must be procedurally fair and must be held be fore an impartial dec ision
maker. These requirements may be spel led out further as follows:
• the hearing must be held “before an independent and impa rtial magis-
trate” (that is, a person capable of acting judicially who is and who
appears to be independent of and impartial as between the parties);
• the magistrate must decide the matter “on the facts and the law”;
• the person affected must have “the right to k now the case put against
one and the right to answer th at case.”10
8 Singh, above note 1 at 213–14.
9 Charkaoui, above note 2 at para 2 8. See also two contrast ing decisions concern-
ing the valid ity of s 140(2) of the Corrections and Condit ional Release Act, SC
1992, c 20, which gives the Par ole Board a discretion whether to hold a he aring
to decide certa in cases. In Canada (Procure ur général) c Way, 2015 QCCA 1576,
the Quebec Cour t of Appeal held that this d iscretion was unconstitut ional in
that it was arbit rary. The decision at issue was whet her the offender’s parole was
to be revoked. But in Bilodeau-Ma ssé v Canada (Attorney Ge neral), 2017 FC 604,
the Federal Cour t held that an oral hearin g was not always needed; but it did
require the bo ard “to ensure that the reli able and convincing nature of i nfor-
mation in the file e nables it to make an informed de cision” (at para 180) before
deciding not to meet w ith the offender. The decision at issue wa s whether to
maintai n the suspension of a long-term offen der order under s 135.1 of the Act.
10 Quoted portion s from Charkaoui, above note 2 at pa ra 29 [emphasis remove d];
see also Singh , above note 1 at 212–13; Pearlma n, above note 3 at 882– 83; United
States of Americ a v Ferras, 2006 SCC 33 at par a 22 [Ferra s].
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