Fundamental Justice - Canadian Bill of Rights

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 Diefenbaker 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, refugees 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."