Chapter Four: Law and Education

4.5 Natural Justice and Fairness

One of the most important legal concepts is natural justice, or, more accurately, fairness in legal procedure. Natural justice has to do with whether the law has been applied fairly, regardless of the actual content of the law. An unfair law could still be applied in a way that respects principles of natural justice.

There are two basic aspects of natural justice. First, the person judging any particular situation should not be biased. This is usually taken to mean that the decision-maker should not have a direct interest in the case. Thus, if a teacher has accused a student of cheating, the teacher should not act as judge in the case also. The second requirement is that the person accused has the right to a fair hearing ‒ that is, to understand the charge being made, and to give their side of the story. As with the concept of reasonableness, the meaning of natural justice often requires interpretation in a given set of circumstances. We will see later in this chapter the difficult challenges that the concept of natural justice may pose for many current school practices, especially in areas such as student discipline.

The Charter of Rights and Freedoms has focused much more attention on the concept of natural justice as it relates to legal matters involving education. Section 7 of the Charter guarantees the right to fundamental justice. Although the meaning of fundamental justice will only gradually be determined through court decisions, it appears to have a broader application than does natural justice. Natural justice deals with procedural fairness rather than with the substance of a law. In applying the Charter, however, the Supreme Court has generally considered both aspects ‒ whether a law was applied fairly, and whether the law was itself substantially fair or just. This broader application gives courts a much wider scope in reviewing the actions and decisions of educators.

Is the Legal System Fair?

Although we like to believe that our courts are impartial arbiters of justice, courts, like other human institutions, are far from perfect. For one thing, ability to gain a hearing in court may depend on having enough money to hire good legal counsel. In a case that might reach the Supreme Court, lawyers’ fees can be many thousands of dollars, which makes this avenue unavailable to many people, regardless of how strong their case might be. For example, a student wishing to challenge a school board will have a much harder time finding the money for lawyers than will the school board. Cases may also be decided on legal or procedural technicalities that have little to do with their substantive merits. Judges, like other people, are subject to biases and stereotypes. Some groups of people have been more likely than others to be sent to jail for the same offence, and some judges tend to give harsher sentences than others for the same transgressions (Bernard & Smith, 2018; Chartrand, 2019; Grekul, 2020; Heo, 2019). Thus, in the justice system, as in politics, there are significant inequalities.

In the past, political decisions made through legislatures and school boards have been far more significant for the schools than have been those made in the courts, with some exceptions in areas such as language and religion. This situation has changed under the Charter, which provides more grounds for judicial challenge to school practices (de Britto, 2018; Ginn et al., 2020; Murdoch et al., 2018). Before examining the Charter and its implications, it will be helpful to have a more general discussion of the nature of rights.