From substantive due process to substantive principles of fundamental justice
University of British Columbia
Master of Laws - LLM
In April 1982, Canada entrenched in its constitution a Charter of Rights and Freedoms. Section 7 of this new document provides 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". The Canadian Bill of Rights (1960), and the British and American constitutions, safeguarded those fundamental rights through the phrase "due process of law" instead of "principles of fundamental justice". The phrase "due process of law" has often been analysed in terms of the dichotomy between "substantive due process" and "procedural due process". There is evidence that the drafters of the Charter rejected the phrase "due process" to avoid any introduction in Canada of the American concept of substantive due process. In their minds, "principles of fundamental justice" protect what is called "procedural due process". The purpose of this thesis is to suggest an interpretation of the phrase "principles of fundamental justice" which fits into our Anglo-Canadian tradition of constitutional law. This interpretation has nothing to do with the American interpretation of "due process of law". The approach that I suggest should lead to the abandonment of the traditional dichotomy borrowed from the United States between "procedural due process" and "substantive due process". It does not mean that section 7 of the Charter will never give the same result as the American jurisprudence, but the reasoning to reach such a result will be in accordance with our Canadian constitutional tradition. I conclude that the British and the Canadian courts have been reluctant to adopt "substantive due process" because of the doctrine of supremacy of Parliament. I then examine in detail the evolution of "substantive due process" in the United States.and show that the American interpretation arose out of a constitutional tradition different from that of Canada. I argue that it was unlikely that Canada could have imported the American interpretation of "substantive due process" without doing violence to its own constitutional tradition. I then suggest an interpretation of the phrase "principles of fundamental justice" which conforms to Canadian constitutional tradition. I argue that those principles of justice exist at common law and were already protected through the fiction of several "presumptions" created from time to time by the courts to interpret statutes. Those principles of justice encompass both procedural and substantive matters, but the proposed approach-makes that distinction irrelevant. The only relevant question in regard to section 7 is whether a "principle of fundamental justice" arising out of the Anglo-Canadian legal system is at stake in a given case.
Law, Peter A. Allard School of