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A Promise Not Yet Kept: The Relevance of Magna Carta in Canada in 2015

In Runnymede in 1215, a coalition of barons compelled King John to sign the Magna Carta, a “Great Charter”[1] promising a list of rights to the King’s subjects. It was the earliest recorded instance of subjects imposing limits on their King’s arbitrary and corrupt use of power.[2] The Charter formally recognized the principle that all people – even the king – are subject to the rule of law. The Magna Carta remains relevant today, in part, because it set the foundation for concepts that define our modern Canadian legal system. Yet in today’s troubled political climate, the Magna Carta is more than an artifact of history. On its 800th anniversary, the Magna Carta lives on as a reminder that citizens must continue to struggle to uphold those values the Charter espouses. In Canada in 2015, the Magna Carta is more relevant than ever.

There is no doubt the Magna Carta has had a far-reaching influence on Canadian society.

The creation of the Charter marked the first time that “overarching principles”[3] of justice were set down in written words, providing an iconic record of human rights that inspired the governing of societies in the centuries that followed, and that underpins democratic life in Canada today. Although many of the Magna Carta’s original 63 clauses were specific to the times and quickly fell out of use, several fundamental principles have endured.[4] Noel Kinsella, a Retired Speaker of the Senate, observes that, “No single document has had such a profound influence on the establishment of constitutional and human rights instruments around the world.”[5] The modern legal concepts that everyone has a right to trial by jury and freedom from unlawful detention, or habeas corpus, directly trace from clauses 39 and 40 of the Magna Carta, and are guaranteed in the Canadian Charter of Rights and Freedoms.[6] The Magna Carta also informed the creation of another significant legal document, the 1763 Royal Proclamation or the “Indian Magna Carta,” so-called because, like its namesake, it laid the groundwork for future treaties between the Crown and First Nations peoples in Canada.[7] The Magna Carta itself has been referenced in numerous Supreme Court cases, one of the most recent being in 2000, when Justice Louis LeBel cited clause 40 to affirm the idea “that justice delayed is justice denied reaches back to the mists of time.”[8] Although the text of the Magna Carta is not a formal part of the Canadian constitution,[9] its fundamental ideas and the spirit in which it was created continue to guide our democratic and legal systems, and are invoked by Canadian people whenever human rights are threatened.

It is clear that the Magna Carta played a crucial role in the development of legal principles and ideals that guide our current Canadian democracy. However, while we tend to associate Canada with values such as freedom, democracy, and the rule of law that derived from the Magna Carta, it is important to question to what extent we actually posses these rights.[10] The barons who created the Magna Carta did so as a practical means of checking King John’s abusive and lawless use of power, which included overtaxing and arbitrarily imprisoning his subjects. Even though the Great Charter was created 800 years ago, today we still must deal with leaders who attempt to go beyond the law to achieve their own ends.

There are striking parallels between the rights violations of King John and those of our recent Canadian government. Whereas King John heavily overtaxed his subjects, Prime Minister Stephen Harper spent millions of public dollars on political advertising.[11] King John severely restricted his subjects’ access to natural resources, dishonouring the promise of environmental stewardship recognized in the Magna Carta and its companion, the 1217 Charter of the Forest.[12] Similarly, the Harper administration has heavily restricted the ability of federal scientists to share their research on climate change and thereby protect our environmental resources.[13] And while King John jailed and tortured his subjects without proper evidence,[14] in 2002 the Canadian government provided faulty intelligence reports about Canadian citizen Maher Arar to the United States, which resulted in Arar being deported to Syria and tortured as a terrorist suspect.[15] Canada’s actions against Arar clearly negated the right to security of person established in both the Magna Carta and the Canadian Charter of Rights and Freedoms.[16] As much as our nation acknowledges the Magna Carta as a foundational text for modern democratic government, our political leaders still flout the laws and principles for which the Magna Carta advocates.

It is easy to write off King John’s abuses of human rights as products of a bygone era. Indeed, this seems to be the very stance that Prime Minister Harper wants Canadians to take. In London in 2011, Harper thanked Britain for its contributions to Canada, the Great Charter among them.[17] By paying lip service to the document, Harper encourages citizens to celebrate Magna Carta “complacently, as an ancient symbol of long-ago victories.”[18] Yet similar acts to those that King John perpetrated on his people are happening today in Canada under Harper’s supervision. Each time these unlawful acts are left unchecked, it sets a precedent for arbitrary government – the kind of leadership the Magna Carta was designed to terminate.

Some scholars have criticized the Magna Carta as irrelevant, citing its “unenforceability.”[19] After all, the argument goes, if a legal document cannot stop the Prime Minister from abusing the Crown’s power, then what use is it? What these scholars fail to consider is that the Magna Carta was not intended as the final step towards cementing justice for the people of England. After the Magna Carta was ratified, the barons followed up on the document with a series of actions: they set up a council to ensure that the King kept to the Charter, and when King John annulled the document after only three months, the barons responded with civil war.[20] Furthermore, as the decades passed, the Magna Carta was repeatedly revised and reissued. The iteration that we know today was not accepted as an English statute until 1297, some 82 years after the original version was signed.[21] The document then largely fell out of the public’s consciousness until the 1600s, when a jurist named Edward Coke employed the Magna Carta in an attempt to check the power of another corrupt monarchy, the Stuart Kings James I and Charles I.[22] Since 1215, the document has been confirmed almost 50 times in total,[23] with each confirmation attempting to bring new attention to the principles of the Charter. Together, the barons’ actions and the centuries of revision and revival of the Magna Carta highlight an important point: that we need to recognize the pursuit of justice as an ongoing, active struggle; one that requires continual public participation.

The Magna Carta may only be a document, but it provides us with a statement of ideals or goals to strive towards. It is up to each generation to enforce the values represented in the Great Charter. The Magna Carta can only be as effective as the people who interpret and apply the principles it stands for. Jill Lepore observes that the rule of law “wasn’t put in place in 1215; it is a wall built stone by stone, defended, and attacked, year after year.”[24] The Charter chronicles those principles that we need to apply, but the work remains for each generation to interpret, adapt, and apply those rights.

Eight hundred years after it was released, the Magna Carta has proven itself to be an enduring document. Its principles live on today in Canadian legal documents, in the ideals that drive our legal and democratic systems, and in the minds of all those who value human rights. The Magna Carta is so fundamental to our values of justice and democracy that it has survived over time, encoding our responsibility to each other as human beings, as well as our responsibility to protect against overreaching power that violates people’s rights.

As we reflect back on the lessons the Magna Carta has to offer us in 2015, it is significant that the Charter was “insisted on by the people, not granted by the crown.”[25] The Magna Carta remains relevant today as something that we must actively continue to protect. It inspires us in the struggle against Prime Minister Harper as a means of protesting his misuse of power. It is something we can return to, again and again, when we lose our way and the concentrated power of our government corrupts. The relevance of the Magna Carta only increases as we stray further from the principles it represents, and demands that we revisit it.

 

SECONDARY MATERIAL

Bethune, Brian. “Under the Influence: 800 Years of the Magna Carta”, Maclean’s (3 January 2015), online: <http://www.macleans.ca/society/under-the-influence-800-years-of-the-magna-carta/>.

Glover, Shelly. “The Magna Carta Will Tour Canada”, Salam Toronto (19 February 2015), online: <http://salamtoronto.net/?p=19556>.

Harris, Carolyn. “The Charter of the Forest”, The Canadian Encyclopedia (25 June 2014), online: <http://www.thecanadianencyclopedia.ca/en/article/the-charter-of-the-forest/>.

———. “Magna Carta”, The Canadian Encyclopedia (25 June 2014), online: <http://www.thecanadianencyclopedia.ca/en/article/magna-carta/>.

———. Magna Carta and Its Gifts to Canada: Democracy, Law, and Human Rights (Toronto: Dundurn Press, 2015).

Honickman, Asher. “Why the Magna Carta is Still Important”, Huffington Post (18 June 2015), online: <http://www.huffingtonpost.ca/asher-honickman/magna-carta_b_7607686.html>.

Lepore, Jill. “The Rule of History: Magna Carta, the Bill of Rights, and the Hold of Time”, The New Yorker (20 April 2015), online: <http://www.newyorker.com/magazine/2015/04/20/the-rule-of-history>.

Manasan, Althea. “FAQ: The Issues Around Muzzling Government Scientists”, CBC News (20 May 2015), online: <http://www.cbc.ca/news/technology/faq-the-issues-around-muzzling-government-scientists-1.3079537>.

Mendes, Errol. “We’re a Nation Desperately in Need of a Magna Carta Moment”, iPolitics (15 June 2015), online: <http://ipolitics.ca/2015/06/15/were-a-nation-desperately-in-need-of-a-magna-carta-moment/>.

Moore, Christopher. “The Great Charter”, Canada’s History (7 May 2015), online: <http://canadashistory.ca/Magazine/Online-Extension/Articles/The-Great-Charter>.

Nordlinger, Jay. “The Progress of Stephen Harper, Canada’s Conservative Prime Minister”, National Review (11 March 2013), online: <https://www.nationalreview.com/nrd/articles/341200/leader-west>.

Sallot, Jeff. “How Canada Failed Citizen Maher Arar”, The Globe and Mail (19 September 2006), online: <http://www.theglobeandmail.com/news/national/how-canada-failed-citizen-maher-arar/article1103562/?page=all>.

[1] Brian Bethune, “Under the Influence: 800 Years of the Magna Carta”, Maclean’s (3 January 2015), online: <http://www.macleans.ca/society/under-the-influence-800-years-of-the-magna-carta/>.

[2] Carolyn Harris, Magna Carta and Its Gifts to Canada: Democracy, Law, and Human Rights (Toronto: Dundurn Press, 2015) at 15.

[3] Bethune, supra note 1.

[4] Christopher Moore, “The Great Charter”, Canada’s History (7 May 2015), online: <http://canadashistory.ca/Magazine/Online-Extension/Articles/The-Great-Charter>.

[5] Bethune, supra note 1.

[6] Carolyn Harris, “Magna Carta”, The Canadian Encyclopedia (25 June 2014), online: <http://www.thecanadianencyclopedia.ca/en/article/magna-carta/> [Harris, “Magna Carta”].

[7] Ibid.

[8] Bethune, supra note 1.

[9] Harris, “Magna Carta”, supra note 6.

[10] Shelly Glover, “The Magna Carta Will Tour Canada”, Salam Toronto (19 February 2015), online: <http://salamtoronto.net/?p=19556>.

[11] Errol Mendes, “We’re a Nation Desperately in Need of a Magna Carta Moment”, iPolitics (15 June 2015), online: <http://ipolitics.ca/2015/06/15/were-a-nation-desperately-in-need-of-a-magna-carta-moment/>.

[12] Carolyn Harris, “The Charter of the Forest”, The Canadian Encyclopedia (25 June 2014), online: <http://www.thecanadianencyclopedia.ca/en/article/the-charter-of-the-forest/>.

[13] Althea Manasan, “FAQ: The Issues Around Muzzling Government Scientists”, CBC News (20 May 2015), online: <http://www.cbc.ca/news/technology/faq-the-issues-around-muzzling-government-scientists-1.3079537>.

[14] Jill Lepore, “The Rule of History: Magna Carta, the Bill of Rights, and the Hold of Time”, The New Yorker (20 April 2015), online: <http://www.newyorker.com/magazine/2015/04/20/the-rule-of-history>.

[15] Jeff Sallot, “How Canada Failed Citizen Maher Arar”, The Globe and Mail (19 September 2006), online: <http://www.theglobeandmail.com/news/national/how-canada-failed-citizen-maher-arar/article1103562/?page=all>.

[16] Moore, supra note 4.

[17] Jay Nordlinger, “The Progress of Stephen Harper, Canada’s Conservative Prime Minister”, National Review (11 March 2013), online: <https://www.nationalreview.com/nrd/articles/341200/leader-west>.

[18] Moore, supra note 4.

[19] Lepore, supra note 14.

[20] Ibid.

[21] Asher Honickman, “Why the Magna Carta is Still Important”, Huffington Post (18 June 2015), online: <http://www.huffingtonpost.ca/asher-honickman/magna-carta_b_7607686.html>.

[22] Bethune, supra note 1.

[23] Lepore, supra note 14.

[24] Ibid.

[25] Ibid.

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