Canadian Human Rights and Civil

Canadian Human Rights and Civil Liberties

The concepts of "procedural due process of law" and "substantive due process of law" have become a controversy in regard to the interpretation and application of the principle of fundamental justice as stated in Section 7 of the Canadian Human Rights and Civil Liberties. Why is this so? The primary purpose of the creation of Sections 7 to 14 is to protect the people of Canada in their dealings with the legal proceedings, particularly those who are being criminally charged. The Charter clearly guarantees the life, liberty, and personal security of all Canadians. Once the accused person is convicted, his or her liberty will be definitely lost.

In respect to the judicial process, the government ensures that fairness and justice are being observed in the whole process. Here, the fundamental right of an individual is guaranteed to be protected. This is where the due process of law is at work. The government will respect all of the person's legal rights, not just some or most of his or her rights. Historians and law practitioners have long debated the argument as to the fairness of the judicial procedure. To answer this concern, any accused is given the right to be heard and defend his side. This privilege is known as the procedural due process or a fair trial for the accused. However, the Canadian Charter of Rights does not contain any reference to "due process of law." This is substituted by the phrase "fundamental justice."

On the other hand, the substantive due process of law, as taken from the Lectric Law Library, is related with the "basis substance of the law to protect all individuals." This means that there is an equal protection for everyone. The court has interpreted 'fundamental justice' as the substantive concept. Some limitations are placed on laws and legal proceedings in order to guarantee the fundamental fairness, justice and liberty. This is where the problem lies - the vagueness of the concept of fundamental justice.

Let us consider the Motor Vehicle Act, where absolute liability is combined with imprisonment. According to Justice Lamer, it is a violation of the fundamental justice. This is a clear indication that the fundamental justice is not just confined with procedural matters but is also found in the legal system. Although the Charter apparently affirmed to protect the life, liberty and security of a person as one, the courts did not state them as three different rights. They may reflect one right, but not all of the three aspects need to be dominated for a violation of right to take place. If anyone of the rights has been deprived, it must be in accordance with the fundamentals of justice. Otherwise, it is just a mere violation of a person's legal rights.

Along with the government's effort to protect the individual's life, liberty, and personal security is a number of legislative orders passed into law such as the Criminal Code stating the criminal process as well as the corresponding penalty for a particular felony. There is also the presence of regulating bodies like the Commission on Human Rights, the Canadian Bill of Rights, and other law governing bodies. Since the court did not plainly specify the real meaning of Section 7, the application of other laws, particularly the criminal law will be in contradiction with one or more of an individual's legal rights. How and when do we prove that a person's right to life, liberty and security is violated? Is Section 7 violated by the deliberate abuse of any one of its three elements? Or does violation of all of the three elements need to be established? As stated earlier, the Supreme Court has rarely justified it. In the application of fundamental justice, violation of any one of the elements in Section 7 may only be saved in cases caused by natural conditions as stated in Section 1.

Among the conflicts involved regarding the fundamental justice are its sources. Is it based on the traditional justice system or is it patterned from international justice? For the society, the shared assumptions based on the cases and traditions that have long detailed the basic norms on the way the state deals with its citizens is essential. They always expect the court decisions to be consistent with the objectives on social and economic policies. However, in any given case, the Supreme Court is persistent as to the inherent uncertainty of any result. Although the public's opinion is correct, the Supreme Court has the right and duty to uphold its unbiased decision.

Another question that may arise is - "Is the Charter applicable only to Canadian citizens?" In reference to Quebec's Charter of Human Rights and Freedom, the Supreme Court implied that Section 7 is not limited to the citizens of Canada but is applicable to all persons who are physically present in the country. A person who is not a citizen of Canada may enjoy such protection of the law in a way that a Canadian citizen may benefit the same while on another country. This is because of the many treaties between countries regarding the governance of their citizens while in a foreign land. Of course, these rights are not intended to mean the same rights being enjoyed by citizens such as the right to vote and the right to run in government office. The right we are talking here is the right to due process of law. Again, although "due process" is not expressly stated in the Charter, it is meant to be the same as the fundamental justice.

As in the case of Mr. Manickavasagam Suresh, a number of petitions were received that he was deprived of his right of due process during the deportation review and he claimed that he was a victim of arbitrary detention. Because Suresh was not able to exercise his right to habeas corpus, the petitioner maintained that the Canadian government has failed to ensure the equal protection before the law. Despite these petitions, Suresh was deported back to Sri Lanka. Since Suresh was an alleged member a terrorist organization, Canada took into consideration the overall security as a precautionary measure.

As regards the rights to life, abortion takes an impediment position on cases where the health of a pregnant woman is at risk. The Code states that abortion is an offence, but is subject to defense in Section 251(4). As soon as the requirements to validate an abortion is complied, then it is being authorized. There comes the issue on the sanctity of life. When a pregnant woman's life is at stake, it is her personal right to choose whether she wants to continue her pregnancy or not. According to Judge Wilson, if the state interferes with the decision, the pregnant woman's right to liberty is impeded. On the other hand, if the pregnant woman is forced t to continue her pregnancy, her rights to personal security is obstructed. Considering the rights of the fetus to life, the Supreme Court of Canada determined that a fetus is not a person. Therefore, it does not have the rights to enjoy under the Quebec Charter.