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


This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive view” and a “narrow view” respectively, changed the degree to which entrenched rights protected individuals. It offers an historical context for these developments, and gives a comparison between a heretofore unexamined parallel in the jurisprudential developments surrounding the basic guarantee in both countries. It then suggests how these different models for the relationship between the fundamental constitutional structures protecting individual rights in the criminal process will respond to the most significant threats to individual rights from the political branches in decades, as a result of the global war on terrorism.


Civil Rights and Discrimination | Comparative and Foreign Law | Constitutional Law | Criminal Law | Criminal Procedure | Human Rights Law | Jurisprudence

Date of this Version

September 2003