Three Theories of “Principles of Fundamental Justice”

Nearly three decades after the Supreme Court of Canada’s B.C. Motor Vehicle Reference (“MVR”), we still do not have a satisfactory the ory to explain the “principles of fundamental justice” protected under section 7 of the Canadian Charter of Rights and Freedoms. The purpose of this paper is to identify three possible the ories, which emerge implicitly from Supreme Court of Canada case law. The first the ory is historical: A principle of fundamental justice is a legal principle that was historically protected or is deeply rooted in our legal system’s history and traditions. The second the ory is derivative: it posits that the principles of fundamental justice are to be found in the penumbra of section 7 and the other “Legal Rights” protected under sections 8 to 14 of the Charter. A legal principle is a principle of fundamental justice if it is necessary to give meaning and effect to the other principles of fundamental justice in sections 7 to 14 of the Charter. The third the ory is evolutionary: even where a principle is not protected under the first two the ories, the Court may recognize a principle of fundamental justice where the right to life, liberty or security of the person outweighs a competing governmental interest. Under this the ory, the principles of fundamental justice protect an evolving set of national values that command widespread contemporary support. Although none of the three the ories described in this paper can alone account for all of the principles of fundamental justice that have been recognized since MVR, together they account for most (if not all) of the disparate approaches to the principles of fundamental justice in Supreme Court of Canada case law