The principles of fundamental justice have three characteristics. They must be a legal principle; there must be a significant societal consensus that they are fundamental to the way in which the legal system ought fairly to operate; and, they must be sufficiently precise so as to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. An important indicator that a proposed rule or principle is a legal principle is that it is used as a rule or test in common law, statutory law or international law.
Legal Principles
- Bail, conditions, breach, revocation, means rea and presumption - The general principles for setting bail, which restrain how bail conditions are set. As the default position is bail without conditions, the first issue is whether a need for any condition has been demonstrated. Restraint and the ladder principle require anyone proposing to add bail conditions to consider if any of the risks are at issue.
- Breach of Contract, Restitution, and Corrective Justice - The ordinary form of monetary relief for breach of contract is an award of damages, measured according to the position which the plaintiff would have occupied had the contract been performed. Correspondingly, the orthodox position maintained that disgorgement of the defendant’s profits was not an available remedy for breach of contract.
- Confidentiality of Cabinet deliberations - Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant the document’s disclosure.
- Doctrine of unconscionability of arbitration clause - The unconscionability of the arbitration clause can be considered separately from that of the contract as a whole. Respect for arbitration is based on it being a cost-effective and efficient method of resolving disputes. When arbitration is realistically unattainable, it amounts to no dispute resolution mechanism at all. Given the conclusion that the arbitration agreement is invalid because it is unconscionable.
- Exercising hypothecary remedy and prescription - Hypothecary rights are therefore exercised “directly against the person who has the hypothecated property in his or her hands”. Usually, that person is the original debtor and grantor of the hypothec, who remains the owner of the hypothecated immovable.
- Freedom of Expression vs Protection of reputation - The goal of the defamation legislation is to ensure that freedom of expression on matters of public interest is liberated from an aspic of fear over the costs and uncertainty of defending against a lawsuit.
- Journalist and confidential sources-public interest in disclosure vs public interest in confidentiality - Whether a journalist can exempt from the obligation on the basis of a journalistic privilege rooted either in the Constitution or the Charter of Rights and Freedoms which guarantees freedom of expression, “including freedom of the press and other media of communication”, or in the common law.
- National Identity- Culture and Language - Purpose of the national constitution is to preserve culture and language, two core elements of the notion are of identity in said terms, then the well‑being of individuals and communities. We would also point out that, unlike some other rights in the constitution, it recognizes rights that are assessed not only in individual terms but also on a collective level.
- Parliamentary privilege - The dividing line between privileged and non‑privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.
- Retroactive Child Support - The purpose and promise of child support are to protect the financial entitlements due to children by their parents. The jurisprudence has not consistently fulfilled that promise when it comes to historical child support, which is the term used to describe when retroactive child support is sought after the child no longer qualifies as a beneficiary under the applicable legislation.
