Charter of Rights and Freedoms, section 7, Constitutional Law, Fairness, Role of the Courts, Role of the Judiciary, Administrative Law
On at least a short term basis the Charter of Rights and Freedoms has made a significant dent in the Canadian legal landscape. Not only has it produced a veritable cottage industry for practising lawyers and legal academics - it has raised some of the most fundamental questions about which institutions should shape public policy in Canada. The courts have a bold new mandate to measure the acts of the legislative and executive branches of the government against the new standards of the Charter. When these agencies are found wanting, they are to be checked and their illegal actions invalidated.
In some respects, the supremacy of Parliament, in relation to human rights, is dead. Section 7 of the Charter raises the most intriguing and exciting questions of any of the provisions with the possible exception of the equality guarantees in section 15. Section 7 states: "Everyone has the right to life, liberty and security of the person and right not to be deprived thereof except in accordance with the principles of fundamental justice."
Section 7 bristles with basic legal questions: what is fundamental justice; are there affirmative rights to life, liberty and security of the person; can limitations on fundamental justice ever be justified as reasonable in a "free and democratic society"? These are but a few of the questions the courts will have to address. Although the focus of this paper is on how the concept of fundamental justice fits with the existing common law doctrines of natural justice and fairness, this issue cannot be addressed without consideration of these more basic questions.
In the context of the existing legal framework, section 7 raises a host of important practical questions for lawyers. What is the impact of section 7 on the existing law about fair procedures in administrative law? Does it simply 'constitutionalize' natural justice and fairness and if so, does this change anything? Does it add a third category of procedural rights, if indeed there are two at the present time? What impact does it have on the range of interests which attract procedural protections? What are the standing and remedial implications of making a constitutional claim to fundamental justice as opposed to a common law claim for fairness? Will section 7 be a window to American-style substantive due process?
A Wayne MacKay, "Fairness After the Charter: A Rose by Any Other Name?" (1985) 10 Queen's LJ 263.