Canadian Bill of RightsIn 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 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,
Canadian Charter of Rights and FreedomsSince 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". "Due process" was rejected because in the
Section 24The 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 f the Charterspeaks, 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 f procedural fairnessare in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7."See P. W. Hogg, ''Constitutional Law of Canada'' (loose-leaf), Vol. 2, at para. 44.20. In '' Singh v. Minister of Employment and Immigration'', 9851 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), [20021 S.C.R. 3, para. 113; see also: Baker v. Canada (Minister of Citizenship and Immigration),  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 ... ouldconstitute 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., [19973 S.C.R. 3, para. 281 ].
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). *Ho, Lok Sang ''Public Policy and the Public Interest''. 2012. (NY: Routledge, 2012). *Ho, Lok Sang 1997. ''Institutional foundations for a just society,'' Journal of Behavioral and Experimental Economics (formerly The Journal of Socio-Economics), Elsevier, vol. 26(6), pages 627–643.