The Canadian Charter and Judicial Review of Administrative Action: The Scope of Fundamental Justice

Abstract

<p>In 1982, the Canadian Charter of Rights and Freedoms was entrenched as a part of our Constitution. This thesis attempts to determine what effect the Charter will have on the practice of judicial review of administrative action and on the policy-making role of the Canadian judiciary. In so doing, I focus on the concept of due process of law. Prior to 1982, due process of law in Canada was enforced largely by the application of the principles of natural justice. With the passage of the Constitution Act, 1982, due process will also be enforced through the requirements of fundamental justice in s. 7 of the Charter. While "fundamental justice" in the Charter constitutionalizes the existing preconditions for applying the procedural rules of natural justice, it also empowers the courts to examine legislation or administrative action on the basis of non-procedural or substantive violations. This latter understanding of due process was uncharacteristic of the pre-1982 constitutional arrangement in Canada, and of the principles of natural justice.</p>