HomeBlogCanadian Museum of HistoryContact UsDonateDurham CathedralEducationEssaysExhibitionFeaturesFort York National Historic SiteLegislative Assembly of AlbertaMagna Carta FactsMediaParallax 1Parallax 2Parallax 3Parallax 4SupportersThe Canadian Museum for Human RightsThe Magna CartaTime Capsule

Our Forest for All: Magna Carta and the Rule of Law

OUR FOREST FOR ALL: MAGNA CARTA AND THE RULE OF LAW

800 years ago, Magna Carta was given the royal seal by infamous King John of Medieval England, who was pressured by his nobles to comply with the law of the land. Under the Charter of the Forest, its companion document first issued two years later, King John’s son and successor King Henry III relinquished possession of the Royal Forest and made it available to commoners.

As a first attempt to write down and formalize the rule of law, Magna Carta not only became accepted as part of the English tradition; it has also been revered for centuries as humanity’s quest for liberty in documented forms,[1] and accordingly has inspired the constitutions of democratic nations as well as international declarations supporting racial, gender, and class equalities.[2] This is hardly surprising. Written by and for men, Magna Carta recognized a widow’s rights to inheritance and to refuse to be remarried.[3] Like the Forest Charter, it contained promises that specifically dealt with environmental protection.[4] Moreover, both indicated that socio-economic rights are held by communities as much as by individuals, and that human rights are at once relational and individual.[5] Scholars like R. George Wright nonetheless lament that the rule of law, as symbolized by Magna Carta, has been an “undersupplied public good” even in democratic nations.[6]

Following the environmental provisions in Magna Carta and the Forest Charter, the luxuriant image evoked by the latter, and the beautiful pictures that appear on many Magna Carta’s 800th anniversary websites, this essay envisages the rule of law, along with the rights and liberties that it guarantees in democratic societies, as a grand, lush forest—a public good that should be enjoyed by all, but is prone to depletion and exclusivity.

  1. CULTIVATING OUR FOREST: EQUALITY AND THE DUAL NATURE OF RIGHTS

Magna Carta has had a profound impact on Canada. As one of the foundational documents of the British constitutional order, it shaped the Royal Proclamation of 1763, providing the framework for the Crown’s relationship with Canada’s First Nations.[7] Further, its principles of equality are manifested in Canada’s federal Bill of Rights and the Canadian Charter of Rights and Freedoms that forms the first part of the 1982 Constitution Act.[8]

The dual nature of rights, as implied in Magna Carta, has found its presence in Canadian legislation. One latest example is its copyright law. The Copyright Modernization Act of 2012, with its new fair dealing provisions, mitigates the rightsholders/owners-oriented nature of its predecessors by tipping the balance of rights towards the community.[9] Early this year, the “Notice and Notice” provision was added to curb online piracy: compared to the “Notice and Takedown” system in its American counterpart, which functions as a prior restraint on suspected infringers’ actions and chills their freedom of speech, the Canadian provision better reconciles rightsholders’ and the public’s interests.[10] Further, because Canadian law aims to stop “copyright trolls”—rightsholders who seek to make money by threatening people with legal action should they refuse to pay for illegal downloads—it has continued to impose much heftier penalties for commercial pirates than people who download for personal uses.[11] Just as the Forest Charter authorized commoners to hunt in the hitherto “royal” forest, Canada’s new copyright regime has empowered the public to access and utilize the vast and vibrant intellectual commons far more freely than before.

Magna Carta’s spirit of equal justice for all is also manifested in various actions by the government, social groups, and individuals throughout Canada. After the Canadian Human Rights Commission informed the United Nations that the plight of aboriginal peoples had remained one of the nation’s most pressing human rights issues, New Democratic Party leader Thomas Mulcair pledged to repair Canada’s relations with aboriginal peoples in his address to the 36th Annual General Assembly of First Nations held in Montreal this past summer.[12]

Aboriginal peoples are by no means the only disadvantaged group in Canada. On the 10th World Elder Abuse Awareness Day (June 15, 2015), the government announced a New Horizons for Seniors Program funding worth $25,000 to HelpAge Canada for their community-based project, “Seen Your Citizen?,” which aims to raise awareness of agism and support social participation and inclusion of seniors.[13] Another on-going campaign, We Can Do Better 2015, calls on the government to advance women’s rights in the international policy arena, invest more significantly in women’s rights and gender equality at home and abroad, and take further action to end women’s economic and social inequality.[14] On a local level, ending women’s inequality can simply mean enforcing good laws already in existence and not enforcing bad laws that do not even exist. Ordinary people too play an important role in this process. For example, in 2000, the Supreme Court of British Columbia held that women have the right to bare their breasts in public like men do “in a circumstance that did not offend criminal laws of nudity” in the province.[15] Three months ago, when a young woman was told by a police officer to cover up her body while sunbathing without a top on at a beach, she asserted her right to bare her breasts in public, in order to convey the message that the police “can’t enforce laws that don’t exist.”[16]

These campaigns and actions have served to cultivate and protect our forest—the rule of law and its guaranteed rights and liberties. We have aspired to create a forest that excludes no one. Our forest that is accessible to and enjoyed by all.

  1. RESTORING OUR DEPLETED FOREST: THE DIALETICAL QUEST FOR THE RULE OF LAW

Notwithstanding its symbolic importance, Magna Carta was merely one early step in the long, arduous struggle for human liberty. While some scholars argue that it was written for nobles as well as freemen,[17] others emphasize that it aimed at protecting the aristocracy against royal interference and its guarantees were therefore not initially available to all Englishmen, let alone all humanity.[18] Magna Carta’s inadequacies serve as a warning that the enjoyments of rights and liberties conferred by the constitutions and international declarations are often contingent upon the exclusion of certain members in the community.[19] Despite our aspiration and efforts, our forest is not as inclusive as it seems.

Transgender people have always been marginalized in Canadian society. Two years ago, Bill C-279, seeking to fight hate crimes against transgender individuals by adding “gender identity” to both the Criminal Code and the Canadian Human Rights Act, was introduced and passed in the House of Commons.[20] Yet, the Conservative-dominated Senate committee effectively killed the bill early this year by voting in favor of an amendment that would prevent transgender people from using single-sex washrooms and change rooms.[21] The public debate generated by the bill has no doubt exerted a positive nation-wide impact: six provinces have adopted similar human rights codes since its introduction in the House of Commons.[22] However, the amendment to the bill, despite not being passed into law, might reinforce the social perception that transgender people are dangerous and to be feared, and send the message to the public that it is acceptable to discriminate against them.

As some scholars describe the rule of law as an “undersupplied public good,” it came as no surprise that new legislation and actions that strengthen the rule of law and our constitutional liberties often go along with those that threaten them. Despite much controversy, Bill C-51, or the Anti-terrorism Act, became law in June 2015.[23] Owing to its unnecessarily broad definition of activities that undermine the security of Canada and its potential expansion of the functions of the Canadian Security Intelligence Service, people have feared that it would threaten our constitutionally protected freedom of expression.[24] One could almost picture our beloved forest getting disrupted and depleted by the CSIS teams and their spy cameras.

More specifically, environmental activists’ worries that the Anti-terrorism Act could be used not merely to chill their constitutional right, but also to stop their environmental projects, are understandable in light of the federal government’s past records of spying on them.[25] Meanwhile, environmentalists have not abandoned their green vision. Bill C-634, or the Canadian Environmental Bill of Rights, was introduced in late 2014 and is moving through the legislative process. Should it become law, all Canadians would be entitled to a healthy environment, and our nation would move one step closer to enshrining the right to a healthy environment in our Charter of Rights and Freedoms.[26] Should this happen, our damaged forests—both symbolic and real—would be partially restored.

Magna Carta reminds us that the process of creating a rule of law is dialectical. Rights and liberties, rarely ceded by those in power out of the goodness of their hearts, are won through cycles of struggles by the disempowered, and even more so, by the beneficiaries of current systems who continue to stand for the precious freedoms that Magna Carta symbolizes.[27] In years to come, may our dream—and our quest—for a lush, grand forest go on.

[1] E.g., Kajit John Paul Bagu, On Liberty, Identity, and Declarations: Magna Carta to Indigenous Peoples, May 25, 2015, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2610234, at 1, 3.

[2] See, e.g., id. at 1, 3-4.

[3] E.g., MAGNA CARTA AND CANADA, Women and Magna Carta, http://www.magnacartacanada.ca/women-and-magna-carta/ (last accessed Sep. 21, 2015).

[4] THE INSTITUTION OF ENVIRONMENTAL SCIENCES, Magna Carta—Our Legal Right to a Healthy Environment, https://www.the-ies.org/events/magna-carta-our-legal-right (last accessed Sep. 21, 2015).

[5] ROBERT HAZELL & JAMES MELTON, eds. MAGNA CARTA AND ITS MODERN LEGACY 197 (2015).

[6] E.g., R. George Wright, The Magna Carta and The Contemporary Rule of Law Problem, May 21, 2015, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611417, at 4.

[7] CAROLYN HARRIS, MAGNA CARTA AND ITS GIFTS TO CANADA: DEMOCRACY, LAW, AND HUMAN RIGHTS 12 (2015).

[8] Id.

[9] For instance, the law includes, for the first time, new fair dealing exceptions of parody, satire, and education. The Copyright Act §29.

[10] Id. §41. The “notice and notice” provision requires Internet intermediaries, such as ISPs and website hosts, to forward notices sent by copyright owners to users whose Internet addresses have been identified as being the sources of possible infringement. Unlike the “notice and takedown provision” of America’s Digital Millennium Copyright Act, the Canadian provision ensures that non-infringing materials are not removed under the guise of copyright protection.

[11] Id. §38.1. The minimum fine for non-commercial infringement is $100 and the maximum is $5,000, but the latter is for all infringements in a lawsuit, not per infringement. The minimum statutory damages of $100 or any amount proven by the copyright holder, which might be equivalent to the cost of a movie or a rental cost, aim to discourage lawsuits in non-commercial cases. Gilliam Shaw, Canada’s copyright rules explained – A guide to Canada’s Internet piracy laws (with video), VANCOUVER SUN, Jan. 12, 2015, http://blogs.vancouversun.com/2015/01/12/confused-about-copyright-in-canada-a-guide-to-recent-changes-in-canadas-internet-piracy-laws-with-video/.

[12] Obert Madondo, NDP to Repair Canada’s Damaged Relations with Aboriginal Peoples, CANADIAN PROGRESSIVE, Jul. 8, 2015, http://www.canadianprogressiveworld.com/2015/07/08/ndp-to-repair-canadas-damaged-relations-with-aboriginal-peoples/.

[13] GOVERNMENT OF CANADA, Government of Canada Announces Project Promoting Social Inclusion of Seniors and Marks World Elder Abuse Awareness Day, Jun. 15, 2015, http://news.gc.ca/web/article-en.do?nid=987399.

[14] WE CAN DO BETTER CANADA 2015, http://wecandobetter2015.ca/sites/default/files/backgrounder_gender_equality_en.pdf (last accessed Sep. 21, 2015).

[15] Radio West, Being Topless in Public Is Legal, B.C. Woman Reminds Others after Police Encounter, CBC NEWS, Jun. 28, 2015, http://www.cbc.ca/news/canada/british-columbia/being-topless-in-public-is-legal-b-c-woman-reminds-others-after-police-encounter-1.3170353.

[16] Id.

[17] Jessica Werb, Q&A: The Impact and Origin of the Magna Carta on Its 800th Anniversary, UBC NEWS, Jun. 3, 2015, http://news.ubc.ca/2015/06/03/qa-the-impact-and-origin-of-the-magna-carta-on-its-800th-anniversary/.

[18] Timothy Sandefur, Lex Terrae 800 Years On, forthcoming in NYU J. L. & LIBERTY (2015), available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617400, at 1.

[19] R.H. Hilton , in his 1965 article Freedom and Villeinage in England, drew from the writings and findings of other researchers about the 11th and 12th centuries and concluded that “… in 1215 and in Magna Carta, it could hardly have meant anything less than a ‘privileged man,’ and much more, a baron.” Bagu, supra note 1, at 4, 8.

[20] E.g., Robin Levinson King, Trans Rights Bill Amendment Would Bar Trans People from Public Washrooms, THE STAR, Feb. 25, 2015, http://www.thestar.com/news/canada/2015/02/25/trans-rights-bill-amendment-would-bar-trans-people-from-public-washrooms.html.

[21] E.g., id; because of the amendment, the bill would need further approval from the House of Commons, which did not debate the bill again before it broke for summer and dissolved for federal election in fall 2015. Mike Hager, Gender Identity Bill Sent Back to the House of Commons, THE GLOBAL AND MALL, Feb. 25, 2015, http://www.theglobeandmail.com/news/british-columbia/gender-identity-bill-sent-back-to-the-house-of-commons/article23209284/.

[22] Id.

[23] E.g., Clayton Rice, Canada’s Bill C-51: An Attack on the Rule of Law, Mar. 2, 2015, http://www.claytonrice.com/canadas-anti-terrorism-bill-attack-rule-law/.

[24] E.g., id.

[25] Laura Payton, Anti-terrorism Bill’s Powers Could Ensnare Protesters, MP Fears, CBC NEWS, Feb. 17, 2015, http://www.cbc.ca/news/politics/anti-terrorism-bill-s-powers-could-ensnare-protesters-mp-fears-1.2960518.

[26] Pierre Sadik, Making Sense of the Proposed Canadian Environmental Bill of Rights, ECOJUSTICE, Feb. 17, 2015, http://www.ecojustice.ca/making-sense-of-the-proposed-canadian-environmental-bill-of-rights/.

[27] Werb, supra note 17.

Leave a reply

Your email address will not be published. Required fields are marked *

0 Comments

Return to home