Canadian Fundamental Justice and U.S. Due Process: Two Models for a Guarantee of Basic Adjudicative Fairness

This Article compares the models two supreme courts have developed for mediating the relationship between two constitutional rights that apply in the criminal process. It suggests that the degree to which a right actually protects an individual turns upon two questions. First, is the right entrenched as a guarantee of adjudicative fairness or as an enumerated right? The greater the court's readiness to find that a right implicates the guarantee of adjudicative fairness, the greater latitude it has to find a violation of that right. This is a function of the basic or fundamental character of the guarantee. The court's readiness to find a violation then leads to a subsidiary issue that affects the scope of protection. Second, when both the guarantee of adjudicative fairness and an enumerated right can apply, which trumps? The greater the court's readiness to find that the guarantee rather than an enumerated right applies, the greater the likelihood that the court will find a violation, because the guarantee of fairness cannot afford less protection than an enumerated right. This Article tests this thesis by applying it to the jurisprudence governing the open-ended guarantee of adjudicative fairness and enumerated protections in the criminal process in the U.S. and Canadian constitutions. It concludes that, despite very different histories at very different times, the jurisprudence of the guarantee of adjudicative fairness in the two countries has undergone a remarkably similar pattern of development, in which there has been serious reservations about its scope and potential for usurpation of authority, then judicial readiness to exercise broad authority combining the guarantee of adjudicative fairness with enumerated rights to revolutionize the country's criminal justice system. This similar pattern of development has nevertheless resulted in very different models for the relationship of the guarantee to enumerated rights. The U.S. jurisprudence evolved as a narrow model of the guarantee that applied only where an enumerated right did not or in extreme cases, whereas the Canadian jurisprudence developed in a much more expansive fashion that provided protection even where the enumerated right seemed to dispositively preclude it. Finally, this Article suggests how these different models might apply to issues - specifically, those arising from restrictions on individual rights - posed by the reality of the war on terrorism. The Canadian model, in which the guarantee of fundamental justice is viewed expansively, could be much more effective at openly identifying the degree to which these restrictions affect individual rights, and in ensuring that these individual protections are maintained, although certain structural features of the Canadian Charter of Rights and Freedoms (Charter) permit the Court to avoid this role if it so chooses. The narrower model of due process adopted in the United States will make it less likely that constitutional violations are found from the new restrictions, although violations that this model identifies are more likely to translate into actual protections.

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