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Encyclopedia > Fundamental justice

Fundamental justice is a term in Canadian administrative law that signifies those basic procedural rights that are afforded anyone or anybody facing an adjudicative process or procedure that affects fundamental rights. It is used often in the area of Canadian administrative law with the analysis of a decision being patently unreasonable or otherwise being protected from judicial review. It is analogous to the older concepts of due process, natural justice, and Wednesbury unreasonableness. Administrative law is the body of law that arises from the activities of administrative agencies of government. ... Patently unreasonable or the patent unreasonableness test is a legal test created by common law and used in Canada by a court performing judicial review of administrative decisions. ... Judicial review is the power of a court to review a law or an official act of a government employee or agent; for example, although the basis is different in different countries, as unconstitutional or violating of basic principles of justice. ... Due process of law is a legal concept that ensures the government will respect all of a persons legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. ... The doctrine of natural justice is founded in the notion that logical reasoning may allow the determination of just, or fair, processes in legal proceedings. ... Wednesbury unreasonableness is a term that is used to refer to the principle enunciated in the case of Associated Provincial Picture Houses v. ...


The term fundamental justice has usually been used in context of Canadian bills of rights. In written law, it 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 section, merely equivalent to natural justice. A bill of rights is a statement of certain rights that citizens and/or residents of a free and democratic society have (or ought to have) under the laws of that society. ... 1960 was a leap year starting on Friday (link will take you to calendar). ... The Canadian Bill of Rights is a federal statute enacted in 1960 that provided Canadians with a statutory rights. ... John George Diefenbaker (September 18, 1895 - August 16, 1979) was the thirteenth Prime Minister of Canada. ... 1972 was a leap year that started on a Saturday. ...


The Canadian Bill of Rights, however, was never a constitutional instrument, but rather an ordinary statute. Hence, 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." "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. A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ... 1982 is a common year starting on Friday of the Gregorian calendar. ... Section Seven of the Canadian Charter of Rights and Freedoms protects an individuals autonomy and personal legal rights from actions of the government. ... The Canadian Charter of Rights and Freedoms is a constitutionally entrenched bill of rights which forms part of the Constitution of Canada adopted in 1982. ... The term right to life is a political term used in controversies over various issues that involve the taking of a life (or what is perceived to be a life). ... Liberty is generally thought of in English as a condition in which an individual has immunity from the arbitrary exercise of authority; it often also implies the right to exercise political rights such as standing for office. ... The Lochner era is a period in American legal history from roughly 1905 to 1937 where the United States Supreme Court made a series of judgements establishing a laissez-faire policy towards individual and group rights in favour of market self-regulation. ... Peter Wardell Hogg, C.C., Q.C., Ph. ...


Since the 1985 Supreme Court of Canada decision Re B.C. Motor Vehicle Act, the meaning of the words "fundamental justice" used in Section 7 of the Charter has been greatly expanded and encompasses much more than mere procedural rights. (For principles of fundamental justice developed in section 7 case law, see Section Seven of the Canadian Charter of Rights and Freedoms.) Still, the term fundamental justice might have some meaning in Charter case law even outside section 7. In the 2003 Charter section 23 case Doucet-Boudreau, some Supreme Court justices wished to narrow the scope of the remedial section 24 by citing fundamental justice, specifically by citing the "functus officio" rule. (In this case, a lower-court judge, using section 24, had demanded that the government continue to report to him after his ruling). However, these Supreme Court justices formed the minority of the panel, and the earlier decision was upheld. 1985 is a common year starting on Tuesday of the Gregorian calendar. ... The Supreme Court Building in Ottawa The Supreme Court of Canada is Canadas highest court and is located in the capital city of Ottawa. ... Re B.C. Motor Vehicle Act 1985 SCC 72 was a reference submitted to the Supreme Court of Canada regarding the contitutionality of the B.C. Motor Vehicles Act. ... Section Seven of the Canadian Charter of Rights and Freedoms protects an individuals autonomy and personal legal rights from actions of the government. ... 2003 is a common year starting on Wednesday of the Gregorian calendar. ... Enforcement Enforcement of guaranteed rights and freedoms 24. ... Functus officio, Latin for having performed his office, is a legal term used to indicate that a public official, court, governing body, or statute retains no legal authority because his or its duties and functions have been completed. ...


References

  • Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003).
  • Tarnopolsky, Walter Surma. The Canadian Bill of Rights. (Toronto: The Carswell Company Limited, 1966).

External links

  • Complete Decision - Re B.C. Motor Vehicle Act
  • Ombudsman of Ontario Fairness Standards

  Results from FactBites:
 
Fundamental justice - Wikipedia, the free encyclopedia (944 words)
Fundamental justice is a term in Canadian and New Zealand law that signifies those basic procedural rights that are afforded anyone facing an adjudicative process or procedure that affects fundamental rights.
The Queen (1972), it was ruled that fundamental justice was, for the purposes of this case, merely equivalent to natural justice.
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.
Canada, Canada (Minister of Employment and Immigration) v. Chiarelli (1871 words)
Fundamental justice is not breached by deportation: it is the only way to give practical effect to the termination of a permanent resident's right to remain in Canada.
Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards.
In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual.
  More results at FactBites »

 
 

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