Procedural Fairness as a Principle of Fundamental Justice
| Author | Hamish Stewart |
| Profession | Faculty of Law, University of Toronto |
| Pages | 224-286 |
224
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 t hat the procedure for making
a decision that affects a per son’s life, liberty, and 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 proces s is “fundamentally
unfair to the affected person,” then section 7 is violated.2
For a process to be fair, it must at a minimum satisfy the adminis-
trative law principles of natural justice.3 But, as in the admini strative
law doctrine on which the constitutional concept of procedural fair-
ness draws, the content of the requirement of procedural fairness var-
ies with the context and the n ature of the interest affected.4 In Baker
v Canada (Minister of Citizenship and Immigration) (Baker), the leading
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].
[Pearlm an]; Mooring v Can ada (National Parole Board), [1996] 1 SCR 75 at para
38 [Mooring].
884 –85.
Procedural Fa irness as a Principle of Fu ndamental Justice 225
case on the duty of fair ness in administrative law, the Supreme Court of
Canada provided a non-exh austive list 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 t he ‘terms of the statute pur-
suant to which the body operates’”;
• “the importance of the decision to the ind ividual or individuals af-
fec te d”;
• “the legitimate expect ations of the person challenging the decision”;
• “the choices of procedure made by the [decision maker] itself, par-
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 are appropriate in the
ci r cu mst an ces .”5
In Suresh v Canada (Minister of Citizenship and Immigration) (Suresh),
the Court held that these f actors were equally relevant to determining
the content of the duty of fairness under sect ion 7 of the Charter:
What is required b y the duty of fairnes s — and therefore the pr in-
ciples of fundament al justice — is that t he issue at hand be decided
in the context of the stat ute involved and the rights af fected . . . .
More specifically, deciding wh at procedural protections must be pro-
vided involves considerat ion of the following factors: (1) the nature
of the decision made and t he procedures followed in maki ng it, that
is, “the closeness of t he administr ative process to the judicia l pro-
cess”; (2) the role of the particular decision w ithin the statutory
scheme; (3) the importance of the decision to t he individual affected;
(4) the legitimate e xpectations of the pe rson challenging t he deci-
sion where undertaki ngs were made concerning t he procedure to
be followed; and (5) the choice of procedure made by the agency it-
self: Baker, su pra, at paras. 2 3–27. This is not to say th at other fac-
tors or considerations ma y not be involved. This list of factors is
non-exhaustive i n determining the com mon law duty of fairness:
Baker, su pra, at para. 28. It must nece ssarily be so i n determining
the procedures dema nded by the principles of fund amental justice.6
5 Ba ker v Canada (Minister of Citizenship and Immigrati on), [1999] 2 SCR 817, 174
115 [Suresh].
FUNDAMENTAL JUSTICE
226
Thus, as a general rule, the considerations relevant to determ ining the
content of the duty of fairness are the s ame whether or not the person
affected has a constitutiona lly-protected interest at stake. But the con-
stitutional duty of fairne ss cannot (in the absence of a section 1 justifi-
cation or section 33 override) be ousted by express statutory l anguage,
whereas the common law duty can.7
The principle of procedural fairness, and even the five specific fac-
tors identified in Baker and Su resh, are very general and abst ract. The
rest of this chapter ex plains how they have been made more specific in
particular contexts.
2) Fundamental Justice Sometimes Requires an Oral
Hearing
The principles of fundamental just ice do not necessarily requi re an oral
hearing. In extradition 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 heari ng in cer-
tain circum stances; for example, “where a serious issue of credibilit y
is involved” in making the decision,8 or where the pers on affected will
be detained for a significant per iod of time.9 To comply with section 7,
the hearing must be procedurally fair and must be held before an im-
partial deci sion maker. These requirements may be spelled out furt her
as follows:
• the hearing must be held “before an independent and impar tial
magistrate” (that is, a person capable of acting judicially who is and
7 Compare Ocean Port Hotel L td v British Columbia (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 con stitutionally protected inte rests were not at
stake and bec ause the statute clearly did not re quire the decision maker to b e
independent.
On the question of whet her the standard of revie w is affected by the fact th at
constitution al interests are at stake, s ee Chapter 2, Section B(3).
8 Singh, above note 1 at 213 –14.
9 Chark aoui, above note 2 at para 2 8.
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