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Magna Carta: Relevant Irrelevance

In Canada, judicial independence is important now more than ever. John Allemang of the Globe and Mail stated, “The idea that our rights are rooted in history is hugely attractive in anxious times.”[1] We live in a world where our national security is questioned and liberties challenged. Do we give up our liberties for potential safety?

In a February 14 2015 open letter to Parliament, over 100 Canadian professors of law and related disciplines expressed serious concerns over the impact that Bill C-51 would have on the rule of law in Canada. Instead of granting increased powers to CSIS, the letter argues that terrorism must be countered in ways that are fully consistent with Canadian core values, which include liberty, non-discrimination and the rule of law[2]. By referencing the ‘rule of law’ in their letter to Parliament, these professors demonstrated the relevance and significance of Magna Carta in Canada today.

We live in a state of societal unease about threats to our national security. Never the less, Magna Carta, signed 800 years ago, allows us to root our liberties in history. Other doctrines that developed the rule of law and the protection of liberties were built on the foundation of Magna Carta. It is an iconic document, embodying intrinsic values such as equality before the law, the right to due process, and a statement of principle that these values cannot be trumped in or sacrificed in the face in perceived or actual threats.

Most importantly, Magna Carta laid the foundation upon which the judiciary began to challenge abuses of executive power, and led in turn to the concept of an independent judiciary. An independent judiciary is an integral part of Canada’s democracy and we must continue to protect its independence by adhering to the rule of law, even when it might politically expedient not to. Like our Constitution, courts must view the rule of law like a living tree capable of growth and expansion within its natural limits[3].

Magna Carta was signed in 1215 by the hated King John and his barons. It addressed a range of issues, including reform to forest law, local administration, and female inheritance rights[4]. However, it is the concluding section, 39 and 40, that are the most relevant today. They emphasize the king’s accountability to the laws and customs of England, mandating outside scrutiny of the king’s appointments and decisions. Clause 39 reads:

“No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroy….we will not deny or defer to any man either justice or Right.”[5]

Clause 40 provides:

“To no one will we sell, to no one deny or delay right or justice”[6]

These are the foundations upon which due process and the rule of law evolved. Unfortunately, the Charter was seldom honored and faded from history for centuries. It was only during the Stuart Monarchies that Magna Carta re-emerged. Sir Edward Coke, the famous British barrister and judge, described it as an “ancient constitution” and used it as a rallying cry during parliamentary struggles against the arbitrary power of the monarchy[7].

The right to due process is the concept of expecting fair treatment from the judicial system, a constantly evolving concept. It is a “bulwark against injustice, but it wasn’t put in place in 1215; it is a wall built stone by stone, defended, and attacked, year after year”[8]. What was put in place in 1215, however, inspired concepts and legal instruments that expanded its reach. The American Bill of Rights, the UNs’ Universal Declaration of Human Rights and the Canadian Charter of Rights and Freedoms all draw their inspiration from Clauses 39 and 40. In the Canadian Bill of Rights and the Charter of Rights and Freedoms, the term for due process is fundamental justice[9]. The principles of fundamental justice are an integral part of the rule of law, yet in Canada today these principles are being challenged from forces outside the judiciary.

Magna Carta provided the foundation upon which the judiciary asserts its independence from the executive. Generally, an important part of the judiciary is their deference to statutory bodies and elected officials[10]. However, there are times when executives distort the rule of law in order to advance political objectives. It is in these circumstances that the independent judiciary is critical.

This is evident in Canada today more than ever. The disputes between Prime Minister Harper and the Supreme Court of Canada are no secret, with the Supreme Court of Canada ruling against the Canadian Government in cases such as Bedford v. Canada and the rejection of the Nadon appointment. The Prime Minister’s public spat with Supreme Court Chief Justice Beverley McLachlin culminated in 2014 when the International Commission of Jurists called upon the executive to apologize for their accusations impugning the integrity of the Chief Justice[11].

While this conflict between the judiciary and the executive seems novel in Canada, it is nothing new. Over the past 800 years, courts have taken stances opposing executive power and in doing so have invoked and further expanded Magna Carta concepts of due process and equality before the law. Nowhere is this more evident than in the evolution of the writ of habeas corpus, a writ birthed in Magna Carta but which evolved over time to become a significant defender of personal liberties.

Habeas Corpus is a writ used to protect individual liberties by determining if a person was legally detained[12]. However, it was not always so. Until the mid 1600s the use of the writ was generally by monarchs to exercise power over their lands by summoning people for imprisonment, not fair trials[13]. In 1628, however, the Petition of Right was passed, declaring that imprisonment orders issued by the King had to follow the due process of law[14]. After this, courts increasingly used habeas corpus to prevent executives from infringing on liberties without adherence to the rule of law. Habeas corpus was instrumental in the abolition of slavery in England, the protection the right of enemy ‘aliens’ in Britain, and recently in the United States to give inmates in Guantanamo Bay due process[15].

While the writ is an important aspect of the rule of law, what is more important is how the writ evolved. Courts took concepts from Magna Carta and shaped them to protect the rule of law[16]. Like the idea that our Constitution is a living tree capable of growth and expansion, it is important that courts continue to take concepts inherent to the rule of law, which have their roots in the Magna Carta, and evolve them when necessary. This is important today and courts face pressure from external forces to adhere to a certain ideology.

Furthermore, this is not just about the judiciary, but extends to academics who adhere and understand the importance of the rule of law. This is why the above letter regarding C-51 demonstrates the influence of Magna Carta in Canada today. The baron’s did not view Magna Carta in the way that we view the rule of law today, but they did establish precedent for executive accountability. The open letter to parliament is significant as constitutes a public indictment of a political policy based on an assessment of the rule of law.

It is essential, at a time when Government is increasingly attempting to politicize the Canadian Courts through ideological appointments that the judiciary remembers to assert its independence by adhering to the rule of law when legislation and politics attempts to impugn it. It is a defense against those who reject or try to prune the ‘living tree’ concept because they believe it means rule by judges[17]. It is Magna Carta that presented the ideas of due process and equality before the law. The courts have applied and evolved these ideas throughout history to create a stronger rule of law and limit arbitrary authority in check. Building on Magna Carta, courts have creatively stood up to the executive when necessary to protect individual liberties.

[1] John Allemang, “Magna Carta provides a historical anchor for our rights” The Globe and Mail (2 February 2015). Online: <http://www.theglobeandmail.com/news/world/how-the-magna-carta-gives-us-a-historical-anchor-for-our-rights/>

[2] “Open letter to Parliament: Amend C-51 or kill it” National Post (27 February, 2015). Online: http://news.nationalpost.com/full-comment/open-letter-to-parliament-amend-c-51-or-kill-it

[3] Sean Fine, “Stephen Harper’s courts: How the judiciary has been remade”, The Globe and Mail, (24 July 2015). Online: http://www.theglobeandmail.com/news/politics/stephen-harpers-courts-how-the-judiciary-has-been-remade/article25661306/

[4] Carolyn Harris, Magna Carta and its Gifts to Canada: Democracy, Law, and Human Rights. (Toronto: Dundurn Press, 2015) at 39

[5] Ibid, at 41

[6] Ibid, at 42

[7] Jill Lepor, “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

[8] Ibid, “The Rule of History”

[9] Harris, Magna Carta and It’s Gifts, at 41

[10] Fine, “Harper’s Court”

[11] Sean Fine, “Harper, MacKay should apologize to Chief Justice McLachlin, commission says”, The Globe and Mail (25 July 2014). Online: <http://www.theglobeandmail.com/news/politics/harper-mackay-should-apologize-to-chief-justice-mclachlin-commission-says/>

[12] Tom Bingham, The Rule of Law. (London: Penguin Books, 2010), at 14

[13] At this time the King’s prerogative was the highest court in the land and they would use the writ to bring people before them they wished to put on trial. Paul D. Halliday. Habeas Corpus: From England to Empire. (Cambridge: The Belknap Press of Harvard University Press, 2010), at 29

[14] Ibid, 29

[15] See James Somerset Case for slavery (Halliday, 176), the 1697 case of Daniel DuCastre and Francis LaPierre for ‘aliens’ (Halliday, 207), and Boumediene v. Bush for the Guantanamo Bay case in which Justice Roberts of the Supreme Court of the United States referenced the Magna Carta.

[16] Halliday, Habeas Corpus, at 4

[17] Fine, “Harper’s Court”

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