Wizened Stump or Living Tree? Section 7 Principles of Fundamental Justice

Abstract

In Re B.C. Motor Vehicle Act and other early Canadian Charter of Rights cases, the Supreme Court of Canada held that section 7’s guarantee of fundamental justice demands not only procedural fairness, but respect for international human rights norms, attention to other Charter rights, and the application of an equality lens, among other substantive requirements. Within a decade, however, the constitutional hybrid planted by Justice Lamer in Re BC Motor Vehicle Act began to wither, stunted by a formalistic approach to recognizing new principles of fundamental justice and starved for nourishment from the interdependent ecosystem of substantive equality and international human rights, upon which the Charter’s flourishing depends. The sickly state of section 7’s guarantee of fundamental justice was exposed in the 2011 Toussaint v Canada (Attorney General), decision, in which the Federal Court of Appeal ruled that denying medically necessary health care to undocumented migrants did not violate the principles of fundamental justice because it was consistent with the government’s objective of preventing Canada from becoming a “health-care safe-haven”. This paper examines the evolution of the section 7 guarantee of fundamental justice from its early surprising promise to its current withered state. It suggests that Ms. Toussaint’s ongoing legal challenge to the Canadian government’s refusal to implement the remedies called for by the UN Human Rights Committee in her case, offers a crucial opportunity for Canadian courts to reinvigorate the principles of fundamental justice as a vital limb of the Charter’s living tree.

Keywords: Canadian Charter, principles of fundamental justice, health care, undocumented migrants