Fundamental justice
Encyclopedia
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate." These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law
that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice. A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general.
The term is used primarily in Canadian
and New Zealand
law, including in the Canadian Bill of Rights
and the Canadian Charter of Rights and Freedoms
. Fundamental justice, although closely associated with, is not to be confused with the concepts of due process
, natural justice
, and Wednesbury unreasonableness
.
government. Specifically, section 2(e) of the Canadian Bill of Rights stated that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." According to the legal scholar Walter Tarnopolsky
, the wording of the clause sparked some controversy among those drafting the Bill. Some wanted the words "natural justice
" in the place of "fundamental justice," as "natural justice" was indeed a more common phrase with judges and authors. "Fundamental justice" was a more obscure alternative with these figures (other such alternatives include "universal justice"). Still, "fundamental justice" was chosen, and in the case Duke v. The Queen
(1972), it was ruled that fundamental justice was, for the purposes of this case, merely equivalent to natural justice
. The author, Chief Justice Fauteux, did, however, say that he was not trying "to formulate any final definition."
Unlike the Canadian Charter of Rights and Freedoms, which was added to the Constitution of Canada
in 1982, the Bill of Rights is not a constitutional instrument but rather an ordinary statute. Still, the Canadian Bill of Rights remains in effect, and its guarantee of the "determination" of one's "rights and obligations" through fundamental justice is not precisely duplicated in the Charter. While the term "fundamental justice" does appear in section 7
of the Charter, this is to limit the rights to life
, liberty
and security of the person. Hence, in the 1985 Supreme Court of Canada
case Singh v. Minister of Employment and Immigration
, half of the Court found section 2(e) of the Bill of Rights still has a role to play in Canadian law, and they used it to find in favour of the rights claimants. Justice Jean Beetz
, writing for this half of the Court, noted that section 26
of the Charter states that rights outside the Charter are not invalid, and hence the Bill of Rights still has a role to play in Canadian law. Beetz went on to find that in this case, refugee
s had been denied hearings, and thus their section 2(e) and fundamental justice rights were infringed. (The other half of the Court also found in favour of the claimants, but relied instead on section 7 of the Charter).
Later that same year, in MacBain v. Lederman, the Federal Court of Appeal
used section 2(e) of the Bill of Rights, and not the Charter, to invalidate parts of the Human Rights Code on the grounds that they could insert bias into a process to determine "rights and obligations."
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.
, 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.
Access To Justice
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 [of the Charter] 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. [ 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 ].
, adopted in 1990, also recognizes the importance of fundamental justice. Specifically, section 8 of the Act, which enshrines the right to life, states in full that "No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice."
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice. A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general.
The term is used primarily in Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
law, including in the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
and the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. Fundamental justice, although closely associated with, is not to be confused with the concepts of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
, and Wednesbury unreasonableness
Wednesbury unreasonableness
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223 is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review...
.
Canadian Bill of Rights
In written law, the term fundamental justice can be traced back at least to 1960, when the Canadian Bill of Rights was brought into force by the DiefenbakerJohn Diefenbaker
John George Diefenbaker, PC, CH, QC was the 13th Prime Minister of Canada, serving from June 21, 1957, to April 22, 1963...
government. Specifically, section 2(e) of the Canadian Bill of Rights stated that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." According to the legal scholar Walter Tarnopolsky
Walter Tarnopolsky
Justice Walter Surma Tarnopolsky was a Canadian judge, legal scholar, and pioneer in the development of human rights law and civil liberties in Canada.-Background and education:...
, the wording of the clause sparked some controversy among those drafting the Bill. Some wanted the words "natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
" in the place of "fundamental justice," as "natural justice" was indeed a more common phrase with judges and authors. "Fundamental justice" was a more obscure alternative with these figures (other such alternatives include "universal justice"). Still, "fundamental justice" was chosen, and in the case Duke v. The Queen
Duke v. The Queen
Duke v. The Queen [1972] S.C.R. 917 was a landmark decision by the Supreme Court of Canada on the Canadian Bill of Rights.-Background:The accused in the case was charged with drunk driving contrary to the Criminal Code of Canada after having been taken to a police station and given a breathalyzer...
(1972), it was ruled that fundamental justice was, for the purposes of this case, merely equivalent to natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
. The author, Chief Justice Fauteux, did, however, say that he was not trying "to formulate any final definition."
Unlike the Canadian Charter of Rights and Freedoms, which was added to the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
in 1982, the Bill of Rights is not a constitutional instrument but rather an ordinary statute. Still, the Canadian Bill of Rights remains in effect, and its guarantee of the "determination" of one's "rights and obligations" through fundamental justice is not precisely duplicated in the Charter. While the term "fundamental justice" does appear in section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Charter, this is to limit the rights to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of the person. Hence, in the 1985 Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case Singh v. Minister of Employment and Immigration
Singh v. Minister of Employment and Immigration
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177-Background:Between 1977 and 1980, Harbhajan Singh and six other Sikh foreign nationals attempted to claim convention refugee status under the Immigration Act, 1976 on the basis that they had a well-founded fear of persecution in...
, half of the Court found section 2(e) of the Bill of Rights still has a role to play in Canadian law, and they used it to find in favour of the rights claimants. Justice Jean Beetz
Jean Beetz
Jean-Marie Philémon Joseph Beetz, was a Canadian jurist and puisne justice of the Supreme Court of Canada....
, writing for this half of the Court, noted that section 26
Section Twenty-six of the Canadian Charter of Rights and Freedoms
Section Twenty-six of the Canadian Charter of Rights and Freedoms, like other provisions within the section 25 to 31 bloc, provides a guide in interpreting how the Charter should affect Canadian society...
of the Charter states that rights outside the Charter are not invalid, and hence the Bill of Rights still has a role to play in Canadian law. Beetz went on to find that in this case, refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
s had been denied hearings, and thus their section 2(e) and fundamental justice rights were infringed. (The other half of the Court also found in favour of the claimants, but relied instead on section 7 of the Charter).
Later that same year, in MacBain v. Lederman, the Federal Court of Appeal
Federal Court of Appeal (Canada)
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
used section 2(e) of the Bill of Rights, and not the Charter, to invalidate parts of the Human Rights Code on the grounds that they could insert bias into a process to determine "rights and obligations."
Canadian Charter of Rights and Freedoms
Since the Canadian Bill of Rights was 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 new Canadian Charter of Rights and Freedoms, which 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
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
". "Due process" was rejected because in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, use of that term in the constitution led to judges expanding its meaning (see Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
) in ways the Canadian government felt would be undesirable. As constitutional scholar Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
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
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia 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.
Section 24
The term fundamental justice might have some meaning in Charter case law even outside section 7. In the 2003 Charter case Doucet-BoudreauDoucet-Boudreau v. Nova Scotia (Minister of Education)
Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada which followed the Nova Scotia Supreme Court's finding that a delay in building French language schools in Nova Scotia violated the claimants' minority language educational rights under...
, some Supreme Court justices wished to narrow the scope of the remedial section 24
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
by citing fundamental justice. In this case, a lower-court judge, after having found the claimants' section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
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.
Access To Justice
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 [of the Charter] 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. [ 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 ].
New Zealand
The New Zealand Bill of Rights ActNew Zealand Bill of Rights Act
The New Zealand Bill of Rights Act 1990 is a statute of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand as a Bill of rights...
, adopted in 1990, also recognizes the importance of fundamental justice. Specifically, section 8 of the Act, which enshrines the right to life, states in full that "No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice."