More Primer: Substantive Due Process In Canadian Law

Since the Canadian Bill of Rights is an ordinary statute, it was not until 1982 when the term "fundamental justice" was first constitutionalized.

The phrase was included in section 7 of the Canadian Charter of Rights and Freedoms. It 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; since the 1985 Supreme Court decision Re B.C. Motor Vehicle Act, the meaning of the words "fundamental justice" in section 7 has been greatly expanded and encompasses much more than mere procedural rights

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. 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.

Some Supreme Court justices felt this was an unconstitutional breach of fundamental justice because the judicial order was not clear enough to the government. However, these justices formed the minority of the panel, and the earlier decision was upheld.

Section 24.(1) reads: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances." A judicial dilemma arises, however, when courts acting under the Rule of Law fail to guarantee access to Justice to applicants seeking review of erroneous lower court decisions.

The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker infra, are the same principles underlying that duty. As Professor Hogg has said, "The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7."

In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker infra, properly recognizes the ingredients of fundamental justice. [ Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, para. 113; see also: Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 ].

Access to Justice is therefore a democratic safeguard guaranteed by various Charter prerogatives in line with principles of Fundamental Justice which the courts cannot deny for reasons involving budgetary concerns. In Singh supra, at p. 218, Wilson J. speaking for the three members of the Court who addressed the Charter ...doubted that utilitarian consideration[s] ... [could] constitute a justification for a limitation on the rights set out in the Charter (emphasis added).

The reason behind Wilson J.’s scepticism was that the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. I agree. [ Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3, para. 281 ].