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Symbolism & Significance: The Place of Magna Carta in Contemporary Canadian Law

When the e-mail arrived in my inbox inviting me to view the Magna Carta I was, as I imagine any law student would be, utterly thrilled.[1] The event was part of the international celebration of the 800th anniversary of the ancient Latin legal document from the 13th century BCE that would see a handful of surviving copies tour of the world, including a Canadian sojourn, and be given the sort of red carpet treatment normally reserved for rock stars and foreign heads of State.[2]

What made me giddy in the first place was the prospect of seeing in the flesh a text of which it has been said repeatedly, especially in the context of its anniversary, is the most foundational of legal artifacts in the common law realm, the holy of holies, the Magna Carta (literally the Great Charter). The document has for centuries been so revered around the common law world that it has been described by historians and lawyers as the birth of parliamentary democracy, human rights, and the supremacy of law over the power of the Crown (or State). As I will discuss, some of this credit is exaggerated and, must be attributed to the mythology that has emerged regarding the legal significance of a medieval document whose many admirers have ascribed an almost sacrosanct importance to it over the years, and continue to elevate it as a quasi-sacred symbol of the rule of law.

Why all the fuss in Canada over a relic from a distant era, that originated in a far off land? After all, there are plenty of historians who will tell you that the Magna Carta is not a blueprint for a modern government and that its influence on modern human rights must be taken with a large sprinkling of proverbial salt. “It is a myth rather than the actual text that can be said to be the foundation of liberty and the rule of law in the English speaking world. To claim that the document has anything to do with democracy or even human rights is simply bad history.”[3]This critique has some validity, but it vastly undersells the relevance of Magna Carta and appeals to an ahistorical mindset that quickly dismisses the value of legal norms from the past if they are not in harmony with our contemporary ones. On the contrary, the influence of this historical pact can still be felt in Canada’s modern system of laws and governance. Indeed, in almost every area of Canadian constitutionalism, it is still quite manifest.

The most obvious link between Canada’s modern constitution and the Great Charter is the latter’s bequest to the former of the principle of habeas corpus. The famous Clause 39 which reads “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will proceed with force against him, or send others to do so, except by lawful judgement of his equals or by the law of the land.”[4] It is this critical element with its companion Clause 40[5], that constitute much of the foundation of Section 7 of the Charter of Rights and Freedoms,[6] including the principle article in that section dealing with “life, liberty, and the security of the person”, detention or arbitrary imprisonment (s.9), arrest or detention (s.10), proceedings in criminal matters, including the fundamental right to trial by jury (s.11[f]). It would not be an overstatement to say that Magna Carta is the basis of much of Canada’s constitutionally guaranteed human rights in this area and that we would not be living in a “free and democratic society”, as the Charter’s Section 1 declares, without them.

Much has been made of the fact that the Magna Carter clauses, (including 39 and 40) only applied to so called “freemen.” Indeed, the treaty only benefited a minority of the population of the period, confined as it was to barons, knights and, in a few cases, freemen (peasants that payed rent as tenants). In contrast, there is little attention paid in the document to the vast majority of subjects at the time living as indentured servants or serfs. When interpreting Magna Carta, it is worth bearing in mind that “the Charter’s proclaimed purpose was to declare what the laws was, not what it might become.” [7]Moreover, the pact represented a major break from feudal law and planted the seeds that would eventually flower with the creation of representative government and parliamentary democracy, years later.[8] Clause 60 states “all the men of our kingdom, both clerks and laymen observe them similarly in their relations with their own men.”[9] This suggests that the process for expanding the rights of the ruling class to other segments of society and creating an embryonic form of representative democracy had begun to be put in place by 1215.[10] This system that would eventually establish itself overseas, in many of the British colonies, but especially in Canada, whose founders explicitly paid tribute to the source of their inspiration, establishing as they did, a “Constitution similar in Principle to that of the United Kingdom.”[11]

In Canada, the notions of gender equality and women’s rights are sometimes viewed as being the product of the famous Persons case of 1929, when a group of women fought and won the right to sit in the Canadian Senate.[12] However, the place of women in society would forever and radically shift as a result of the Magna Carta, as well. Historian J.C. Holt observed, the rights of widows to marry whom they wished, contained in Clause 8[13], was a “one of the first great stages in the emancipation of women.”[14]Furthermore, historian Peter Linebeaugh has mentioned that the subsequent versions of the Magna Carta included estovers for certain women that guaranteed them the means of survival in a period of often harsh and brutal living conditions. “It meant that she could have fuel, she could have tools, she could have repairs for her house from the Forest….That is so many materials, so much wealth came exclusively from wood. So, for a woman or a window, in particular, to have access to the commons meant survival.”[15]

The importance of Clause 33 is less obvious. This requirement that all fish weirs be removed from the Thames River is such an odd an arcane piece of legal history that it could not possibly relate to our modern laws in Canada. Yet, Nicholas Vincent explains, it has in fact served as an unconventional legal tool in the struggle of aboriginal peoples all over the world, including Canada, to assert their traditional rights. [16] Indeed, there are a few Canadian cases that illustrate his point. In R v Gladstone a case involving the contested rights of aboriginal claimants in British Columbia allegedly infringing federal statute,[17] the majority of the Supreme Court ruled in favour of the appeal, in part, on the grounds that the impugned provincial law went against the Magna Carta. “It should also be noted that the aboriginal rights recognized and affirmed by s.35(1) ( author’s note: of the Canadian Charter) exist within a legal context in which, since the time of Magna Carta, there has been a common law right to fish in tidal waters that can only be abrogated by the enactment of competent legislation.” [18]

The impact of Magna Carta in Canada goes far beyond lawyers and judges. It has become a symbol of justice in popular culture as well. For instance, this enthusiastic quote from one of the country’s most prominent politicians and nation builders, Sir Wilfred Laurier, who was so impressed with it that he exclaimed “ since the days of the great Charter, never has it been possible on British soil to rob a man of his liberty, his property or his honour.”[19] The last of these is an example of the kind of aggrandizement that seems so much a part of the history of Magna Carta, and is so pervasive throughout Canadian literature on the ancient contract, legal or otherwise. [20]

The popularity and cultural significance of the place occupied by this parchment in Canadian constitutional law remains astonishing. At times, the use of Magna Carta in Canadian legal circles is almost a kind of shorthand for the concept of the rule of law itself.[21] Indeed, its likeness can be found in so many contemporary Canadian legal institutions. Take for example the scenes portrayed on the bronze doors designed for the Supreme Court of Canada.[22] What better reminder of this legal touchstone, that makes jurists that cite it feel as though part of a long unbroken tradition that stretches back to the famous field of Runnymede in England, all the way to the present day? Whether the subject is the Charter, women and aboriginal rights or representative government, in the imagination of so many Canadians the year 1215 may as well have been yesterday and the location of the signing, the front lawn of Parliament Hill in Ottawa.

[1] Thank you to the Canadian chapter of the International Commission of Jurists for inviting me to the Magna Carta exhibit held at the Museum of Canadian History on July 21st, 2015.

[2] For a detailed look at the extraordinary care taken to deliver the artifact to its Canadian fans see Hattie Klotz, “Charter Flights”, The Walrus 12:7 (September 2015) 20.

[3] Ferdinand Mount, “Back to Runnymede”, London Review of Books 37:8 (April 2015) 15.

[4] Full text translation of the 1215 Magna Carta, online: British Library <http://www.bl.uk/magna-carta/articles/magna-carta-english-translation>

[5] The Clause reads “To no one will we sell, to no one deny or delay justice right or justice.” Ibid.

[6] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11.

[7] Mount, supra see note 6 at 16.

[8] A mere 50 years later the first British Parliament was convened under Simon de Montfort. Ibid.

[9] Magna Carta, supra note 4.

[10] Mount, supra see note 6 at 16.

[11] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix 11 No 5.

[12] Henrietta Muir Edwards and Others v. The Attorney General of Canada [1929] UKPC 86, [1930] A.C. 124 (18 October 1929) P.C.(on appeal from Canada)

[13] Clause 8 reads “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of.” Magna Carta, supra see note 7

[14] J.C. Holt, Magna Carta (Cambridge, Cambridge University Press, 2015) at 71.

[15] Democracy Now, “What does an 800 year old document and the Black Lives Matter have in common? A people’s historian explains.” (Jun 15, 2015), online: Democracy Now <http://www.democracynow.org/2015/6/15/what_do_800_year_old_magna>

[16] “Protection of common access to rivers and coastal waters, through their removal of fish weirs, was also covered by a flexible application of Clause 33. In this way, the common rights to the land and waters conventionally exercised by free aboriginal people came under the remit of Magna Carta. In British Canada, the proclamation (authors note: The Royal Proclamation) became known as the ‘Magna Carta’ of native Indian tribes.” Nicholas Vincent, Magna Carta and the Foundations of Freedom (London, Third Millennium Publishing, 2015) at 152.

[17] Fisheries Act, RSC 1985, c. F-14) s 61 (1).

[18] R v Gladstone, [1996] 2 SCR 723, at para 67.

[19] Oscar Douglas Skeleton, The Life and Letters of Sir Wilfred Laurier, v.1 , (Ottawa, The Carlton Library No. 21/Mclelland & Stewart Limited, 1922) at 55.

[20] See for example Carolyn Harris, Magna Carta and it Gifts to Canada: Democracy, Law and Human Rights ( Toronto, Dundurn, 2015).

[21] A quick search of CanLii’s legal database reveals no less than 254 references to Magna Carta in Canadian jurisprudence!

[22] The image of an ornery King John being forced under duress to sign a treaty with his imposing nobles flanking him, can plainly be seen in the bottom left panel of the six historical events depicted on the doors. For an in depth analysis of the bronze doors and other architectural features of the Court read the author’s article Representing Canadian Justice: the Iconography and Symbolism of the Supreme Court of Canada. David DesBaillets, “Representing Canadian Justice: the Iconography and Symbolism of the Supreme Court of Canada” (2014) [unpublished, online: Social Science Research Network <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2491319>].

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