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Magna Carta and the Canadian Access to Justice Crisis

By Kirsten Morry
B.C.L./LL.B Student, McGill University Faculty of Law, Montreal, Quebec
Ordinarily resident in Newfoundland and Labrador

Enough of Magna Carta’s provisions have thematic parallels in the Canadian Charter of Rights and Freedoms that an impression that the 1215 document is the deepest root of our Constitutional “living tree” would be quite reasonable.[1] But the legal status of Magna Carta and the Charter in 2015 Canada could hardly diverge more widely. Various Canadian appellate courts, and the Federal Court, have agreed that Magna Carta is simply ordinary legislation that is amenable to parliamentary modification.[2] Magna Carta is therefore more seed than root of the Constitutional living tree: a precursor, rather than a current and integral element. Legal dominance for Magna Carta is thus illusory, but its continuing significance for 21st century Canadians is very real. Magna Carta is a reference point and touchstone, frequently invoked by judges seeking to protect fundamental principles of law and democracy.[3] This essay will focus on article 40 in the 1215 version of Magna Carta: “To no one will we sell, to no one deny or delay right or justice.” This promise is particularly resonant in a time where a crisis in access to justice has been openly acknowledged by the Supreme Court of Canada.[4] Costliness, delay and denial of justice are all components of this crisis. Judges have been addressing each one in innovative ways in Canada, finding ways to give life to the promise in Magna Carta that justice shall be available to all in a timely manner.

Though phrased in a sweeping manner, article 40 must be understood with reference both to its thirteenth-century context and its re-interpretation in subsequent centuries. Magna Carta “was not intended to be a lasting declaration of legal principle or theory.”[5] It was the means by which a seemingly intractable dispute between King John and his barons was (temporarily) resolved in 1215. The king, and his Plantagenet forebears, had exercised the royal prerogatives of warmaking and taxation beyond the tolerance of the barons, who were key stakeholders in medieval society. The powers of medieval kings were “vaster in theory than in any practice that a king would dare attempt,”[6] but the inadequacy of customary constraints became apparent during King John’s reign. Article 40 was pursued by the barons because the consequences for losing the king’s favour were severe, and could include imprisonment, dispossession of property, or hostage-taking. A promise not to sell or hinder justice was therefore a large concession by the king, though its scope was unclear. Vagueness, and thus the potential for re-interpretation, were part and parcel of Magna Carta from the very beginning, as it was a compromise document developed in a crisis.[7] The various concessions by the king and constraints upon his future action contained in Magna Carta were hugely influential in the “blossoming of legality as a counterweight to power in the conduct of government.”[8]

The “sale of justice” spoken of in article 40 was literal: buying a legal victory was possible under a capricious, powerful king. Today, though this kind of corruption is not a problem in Canada, a price is put on justice in a different way. The costliness of civil justice filters out legitimate legal claims.[9] These costs include both charges imposed by the government and the price of legal representation. In the recent case of Trial Lawyers Association of British Columbia v. British Columbia, the Supreme Court of Canada affirmed that there is a constitutional right to access civil justice, and found that hearing fees that cause undue hardship for prospective litigants infringe upon that right.[10] It rooted this decision in s. 96 of the Constitution Act, 1867, finding that the federal government’s obligation to sustain courts of general jurisdiction in each province implies a duty not to directly render those courts financially inaccessible. The logical connection was reinforced with reference to the fundamental principle of the rule of law: “As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice.”[11] The court also engaged with, and rejected, a broader argument:

“It was argued that all hearing fees are unconstitutional; as courts are a “first charge on government”, charging fees for time in court is as offensive to democracy as charging fees for voting. However, this argument is flawed because it focuses on the type of the fee, rather than the real problem ― using fees to deny certain people access to the courts. Moreover, the argument raises policy issues relating to how governments should generate revenue and allocate their funds. Hearing fees paid by litigants who can afford them may be a justifiable way of making resources available for the justice system and increasing access to justice overall.”[12]

While vindicating the right of individuals to access civil justice, McLachlin C.J. acknowledged that resource allocation is essentially within the purview of Parliament, eschewing a more sweeping prohibition and illustrating the court’s restrained role in Canada’s political architecture.

The problem of delay of civil justice in Canada has also become serious enough to warrant a recent response from our highest court. There is no shortage of egregious exemplars of the length to which a civil action can stretch: to name one, Robinson v. Cinar[13] took eighteen full years to reach its conclusion. That case involved important and unclear copyright issues, but even ostensibly simple matters can take surprisingly long stretches of time, putting sustained stress on litigants. Delay and heightened costs are deeply intertwined. A full trial on the merits, perhaps including the testimony of multiple experts, might be the ideal dispute resolution mechanism in the minds of those who enjoy television programs set in the legal community, but such elaborate procedures are not appropriate for every circumstance. In Hryniak v. Mauldin[14], Karakatsanis J persuasively called for a cultural shift toward the acceptance of trial procedures whose thoroughness is proportional to the complexity of the matter at hand. Specifically, it is perfectly legitimate for judges to employ summary judgement as an alternative to a full trial, as this process “favour[s] proportionality and fair access to the affordable, timely and just adjudication of claims.”[15] Delay of justice, as the maxim goes, amounts to denial of justice, and robust measures to avoid the former are therefore warranted, even if that means condensing or truncating trials.

Though it might seem paradoxical, the denial of courtroom access to certain types of litigants can sustain the functionality of the justice system, and thus work to assure that justice is not denied to society on a larger level. As observed in BC Trial Lawyers, “[t]here is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice.”[16] Vexatious litigation, especially by those employing the “Organized Pseudolegal Commercial Argument” (OPCA) or “freeman-on-the-land” type arguments, has become an escalating problem in recent years, and judges across Canada have responded decisively. Interestingly, such litigants often expressly call upon Magna Carta in their pleadings.[17] OPCA litigants, though generally self-represented, use a common set of terms to purport to prove that they are not subject to the usual laws of the land and deny the force of most laws. Such litigants are antithetical to the idea of rule of law traceable to Magna Carta; they simply put a strain on the objects of their ire and the justice system alike. In Meads v Meads, Rooke A.C.J of the Alberta Court of Queen’s Bench instructively and exhaustively catalogued the techniques of OPCA litigants.[18] The legal community has responded;[19] most recently, the Newfoundland and Labrador Court of Appeal has deemed such techniques to be examples of abuse of process, and thus dismissible at the earliest stages of the legal process.[20]

Preventing the sale, delay and denial of justice are important because the ability of citizens to call upon an unbiased system to resolve conflicts is essential for maintaining a society structured around the rule of law. Rather than turning to revenge or merely acquiescing to the more powerful, citizens can turn to the courts to find and enforce a solution. This was as meaningful an objective for the barons of medieval England as it is for Canadians of all walks of life in the twenty-first century. Magna Carta’s ancient promise has been re-interpreted and given new meaning in Canada, with a recognition that the complexity of assuring that the justice system is functional requires compromises. Correctness is the overarching goal, and fair outcomes that take into account all the circumstances require time and money. By disallowing excessive hearing fees, promoting the use of alternative procedures to the full trial, and acting as gatekeepers against clearly illegitimate legal claims, Canadian judges are keeping Magna Carta’s promise to neither sell, deny nor delay justice to Canadian society. They are doing so in a flexible manner, tailored to the reality and complexity of such a monumental task.

[1] Some of the common themes: mobility rights (s. 6 of the Charter, s. 41 and 42 of Magna Carta 1215), rights for women (s. 28 of the Charter, s. 7 and 8 of Magna Carta), and legal and procedural rights.

[2] R. v Jebbett, 2003 BCCA 69 (CanLII), http://canlii.ca/t/5dnn; Galati v Canada (Governor General), 2015 FC 91 (CanLII), http://canlii.ca/t/gg59f

[3] Prime examples include R. v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), http://canlii.ca/t/1ftp7 at para 97-101, Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC), http://canlii.ca/t/1fqr3 at para 63,

[4] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (CanLII), http://canlii.ca/t/g2s18

[5] Claire Breay, Magna Carta: Manuscripts and Myths. The British Library: 2010. Page 7

[6] Nicholas Vincent, Magna Carta: A Very Short Introduction. Oxford University Press: 2012. Page 14

[7] J.C. Holt, Magna Carta. Cambridge University Press: 1965. Page 5-6

[8] Gregory Tardi, The Theory and Practice of Political Law. Thomson Reuters: 2011. Page 41

[9] Hryniak v Mauldin at para 24

[10] Trial Lawyers Association of British Columbia v British Columbia (Attorney General), [2014] 3 SCR 31, 2014 SCC 59 (CanLII), http://canlii.ca/t/gds2j

[11] BC Trial Lawyers v British Columbia at para 39

[12] BC Trial Lawyers v British Columbia at para 22

[13] 2013 SCC 73. The trial court decision, Robinson c. Films Cinar inc., 2009 QCCS 3793 (CanLII), http://canlii.ca/t/25971, sets out the chronology in great detail. Legal proceedings began in 1995.

[14] 2014 SCC 7, [2014] 1 S.C.R. 87 (CanLII), http://canlii.ca/t/g2s18

[15] Hryniak v Mauldin at para 5.

[16] BC Trial Lawyers v British Columbia at para 47

[17] Fearn v Canada Customs, 2014 ABQB 114 (CanLII), http://canlii.ca/t/g5bx8 at para 327

[18] Meads v Meads, 2012 ABQB 571 (CanLII), http://canlii.ca/t/fsvjq

[19] Meads has been cited 77 times in only three years, according to CanLII.

[20] Fiander v Mills, 2015 NLCA 31 (CanLII), http://canlii.ca/t/gjw43


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