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The Relevance of Magna Carta in Canada in 2015: Upholding the Heritage of Freedom

By Pascal Lévesque
Faculty of Law, Queen’s University

Normally, we in Canada would have never heard of Magna Carta, as it was created under conditions which were not conducive to it enduring very long. First, it was mainly limited to a specific group – England’s King and its Barons. Second, it was not the result of a consensus but of political arm-twisting. Third, it was written in Latin and disseminated in French,[1] languages understood by scholars and local officials but unknown by the English peasants. And ten weeks later, it was declared ‘null, and void of all validity for ever’ by the Pope, the highest authority in Christendom at the time.[2] Despite this, the document sealed by King John on 15 June 1215 at Runnymede did endure and still has great influence in the current Canadian legal psyche, being described as “the roots of our democratic way of life.”[3]

This essay will demonstrate how Magna Carta is relevant in Canada in 2015 as its evolution explains how a legal document limited to a specific context could grow to have a life of its own, going beyond its initial scope, becoming a political argument, and generating other initiatives fostering protection of human rights, especially where there are advocates to keep the fire alive.

To modern Canadian eyes, what makes the ‘carta’ so ‘magna’ is the fact that it was a turning point: for the first time, the King was forced to accept that his ‘divine right’ was not above the law.[4] That shift was illustrated at chapters 39 and 40 pertaining to administration of justice and in chapter 61, which provided that should King John not comply with the terms, a committee of 25 Barons would enforce them. The current importance of Magna Carta, however, is also the result of a semantic amplification. The initial version of 1215 redressed royal abuses of feudal custom at that time.[5] It was a “carta” – the Latin word for “letter”[6] – an ordinary support upon which a political deal was set. After an unsuccessful attempt in 1216, a less controversial version was re-issued by the regent William Marshal in 1217 to find a compromise with the Barons.[7] In the revised version, the clauses related to royal forests were put in a separate and smaller document: the Charter of the Forest. The other ‘carta’ was then qualified ‘magna,’ a ‘large’ or ‘long’ document.[8] But ‘magna’ means also ‘great’.[9] When it was reissued in 1297 as the first act of The Statutes of the Realm,[10] the document still referred to the Latin expression ‘magnam cartam.’ In a series of statutes adopted under Edward III, the French expression ‘Grande Chartre’[sic] was used.[11] Here again the adjective has a dual sense, physical and conceptual. A review of those statutes shows that the drafters had the latter sense in mind. The terms used are designed to reinforce and expand Magna Carta, elevating it to a supra-legislative status.[12] More than two centuries after being issued, it was finally translated into English as the “Great Charter.”[13] By that time, however, it had fallen into obscurity in general public’s mind, being known only to legal scholars and professionals.[14] One of those was Sir Edward Coke, who – probably after studying the Statutes of the Realms for the purpose of his Institutes of the Laws of England – invoked the document to obstruct the Stuarts in their desire to reign as absolute monarchs in the seventeenth century.[15] He advocated that with the Magna Carta, John did not ‘grant’ but ‘recognized’ rights and liberties that were more ancient.[16] The Petition of Right (1628), enacted mainly to provide for parliamentary consent before taxation, referred again to the ‘Great Charter’.[17] Similarly, the Bill of Rights (1689) confirming Parliament’s supremacy over regal power referred to ‘auntient[sic] Rights and Liberties”.[18] Over a period of 75 years, the Magna Carta had transformed into a political argument. In turn, that evolution influenced other prominent jurists like Blackstone, who explained that the simple fact that the document protected “every individual of the nation” in their rights and liberties justifies in itself “the title that it bears, of the great charter.”[19]

When George III issued the Royal Proclamation (1763) – referring to “the Enjoyment of the Benefit of the Laws of Our Realm of England” – what was transplanted to Canada was a greater document than what was initially sealed in the meadow of Runnymede 548 years earlier.[20] This transfer across the ocean was confirmed in 1867 when the drafters referred to a “Constitution similar in Principle to that of the United Kingdom.”[21] That legal heritage in turn inspired Canadian initiatives, with the first example being Tommy Douglas’s Saskatchewan Bill of Rights Act (1947), which in particular addressed discrimination at work.[22] In the Canadian Bill of Rights (1960), John Diefenbaker wanted first and foremost to explicitly confirm the protection of rights and liberties inherited from the British tradition. He also expanded them to new areas, like the freedom of the press, and specified construction rules for courts to apply those rights.[23] The Canadian Charter of Rights and Freedoms (1982) went further by giving them a constitutional status and effective remedies.[24] Arguably, the impact of the transfer even went beyond Canadian boundaries. John Peters Humphrey – a Canadian law professor – played a key role in drafting the Universal Declaration of Human Rights (1948) which, according to Eleanor Roosevelt, “may well become the international Magna Carta of all men everywhere”.[25]

Arguing Magna Carta in Canadian courts today would not bring the debate very far. It may be relevant in comforting judges in their views that Canada has inherited ancient rights and liberties that must be upheld such as democratic rule,[26] the requirement for a meaningful judicial process before losing liberty,[27] and the right to be tried within reasonable time.[28] Using a provision of Magna Carta to solve a modern issue would fail in the face of legislation which had set the matter already, however. For example, it would be futile to invoke that King John committed to ‘not sell justice’ to avoid court transcription fees.[29] It would seem counter-productive even to argue that “citizenship is an inalienable and immutable right” based on the Magna Carta.[30] Legally speaking, it is only a statute that can be modified through ordinary legislation, either federal or provincial.[31] It currently has no constitutional status per se; only the provisions of the Charter or common law principles of fundamental justice that it has inspired do. Besides, if we pay attention the influence of Magna Carta’s ‘children’ and ‘grandchildren’ can be seen. When a defence counsel challenges a judge’s decision to deny bail because he presumably sought information directly from the police in the absence of the accused person prior making his decision, potentially having breached sections 7, 9, 11(d), and 11(e) of the Charter,[32] the argument is merely a refinement of chapter 39 of the Magna Carta (1215), the Habeas Corpus Act (1679) [33] and the Act of Settlement (1701)[34]. We can also feel its aura when courts reemphasize that no one is above the law, including police officers[35] and any member of the executive branch who “does not make the law but merely carries it out or administers it.”[36]

As a political argument, evocation of Magna Carta is intended to strike minds. In a debate about fundamental principles of justice or government, it indicates the proponent’s intent to be on a higher legal ground. Usually it is an appeal to deductive reasoning, applying the general and secular rule set in the Magna Carta to a specific and modern situation. Sometimes an argument appealing to its authority can lead to a logical fallacy. For example, it was raised in opposition to Bill C-51,[37] to retroactive amendments to the Elimination of the Long Gun Registry Act (ELRA) in Bill C-59[38] and to oppose the federal government’s position in the case of Omar Khadr.[39] It was also referred to by the newly appointed Lieutenant Governor of Quebec to define his role as a ‘[Translation] guardian of our individual and collective liberties.’[40] In English, it has even become an antonomasia designed to evoke the foundational nature of a document. For example, First Nations refer to the Royal Proclamation (1763) as their ‘magna carta’ as it defines the relationship between them and the Crown in all treaty-making since.[41]

In sum, in Canada today, Magna Carta represents the starting point of a legal heritage that has flourished since its origins. The preamble of the Constitution Act, 1867 emphasizes “the continuity of constitutional principles, including democratic institutions and the rule of law” originating from a series of texts and historical events starting with the Magna Carta.[42] Rather than being a final destination, the reception of that heritage invites a journey. It involves the responsibility, in particular for jurists, to carefully and vigilantly adapt the tradition to the changing Canadian context and aspirations in the pursuit of an ‘evolutionary democracy.’[43]

[1] See generally James C Holt, “A Vernacular-French Text of Magna Carta, 1215” (1974) 89: 351 The English Historical Review 346 (JSTOR).

[2] UK, British Library, “The papal bull annulling Magna Carta”, online: bl.uk www.bl.uk/collection-items/the-papal-bull-annulling-magna-carta.

[3] House of Commons, “Speaker Scheer to Moderate Panel Discussion on Magna Carta”, Media Advisory, 12 February 2015, online: www.parl.gc.ca www.parl.gc.ca/About/House/Speaker/advisory-magnacarta-e.html;

see also Reference re Secession of Quebec, [1998] 2 SCR 217, at para 63 (Gonthier J) [Reference re Secession].

[4] Debates of the Senate, 41st Parl, 2nd Sess, No 157 (22 June 2015) at 3811 (Hon Joseph A Day), online: www.parl.gc.ca www.parl.gc.ca/Content/Sen/Chamber/412/Debates/pdf/157db_2015-06-22-e.pdf.

[5] Claire Breay, Magna Carta – Manuscripts and Myths (London : The British Library, 2002) at 28.

[6] Oxford Latin Dictionary, 1982.

[7] King John died in October 1216 and his son Henry III was only nine.

[8] Breay, supra note 5 at 44.

[9] Oxford Latin Dictionary, 1982.

[10] Magna Carta, 1297 (UK), 25 Edw I, c 9, online: legislation.gov.uk www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents.

[11] Statute, 1331 (UK), 5 Edw III, cc 1 and 9; Statute V, 1351 (UK), 25 Edw III, cc 4 and 10; Statue, 1354 (UK), 28 Edw III, cc 1 and 3; Statute I, 1362 (UK), 36 Edw III, c 1; Statute concerning Diet and apparel, 1363 (UK), 37 Edw III, c 18; Statute, 1368 (UK), 42 Edw III c 3. The Statutes of the Realm (Vols. 1-11 (1235-1713)) are amongst the collections available on legal database HeinOnline (HL).

[12] Statute, 1368 (UK), 42 Edw III c 1 reads as follows :

“[Translation] At the Parliament of our Lord the King, holden at Wesminster the First Day of May, the Two-and-fortieth Year of his Reign, It is assented and accorded, That the Great Charter and the Charter of the Forest be holden and kept in all Points; and if any Statute be made to the contrary, that shall be holden for none.”

See also Carolyn Harris, Magna Carta and Its Gifts to Canada – Democracy, Law and Human Rights, (Toronto: Dundurn, 2015) at 51.

[13] Nicholas Vincent, Magna Carta – The Foundation of Freedom 1215-2015, 2nd ed (London: Third Millennium Publishing, 2015) at 108.

[14] Harris, supra note 12 at 52-56;

[15] AE Dick Howard, Magna Carta – Text & Commentary, revised ed (Charlottesville: University Press of Virginia, 1998) at 25-27.

[16] Breay, supra note 5 at 46; Harris, supra note 12 at 57-58.

[17] Petition of Right, 1627 (UK), 3 Cha I, c 1, s 8, online: legislation.gov.uk www.legislation.gov.uk/aep/Cha1/3/1.

[18] Bill of Rights, 1688 (UK), 1 Will and Mar, sess 2, c 2, online: legislation.gov.uk www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction.

[19] William Blackstone, Commentaries on the Laws of England, (Oxford: Clarendon Press, 1769) at 417 (HL).

[20] Royal Proclamation, 1763 (UK), 3 Geo III.

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

[22] SS 1947, c 35.

[23] SC 1960, c 44, para 1(f) and s 2. See generally his speech at the tabling of the bill, House of Commons Debates of the Senate, 24th Parl, 3rd Sess, Vol 5 (1 July 1960) at 5642-5650 (Right Hon John G Diefenbaker), online: parl.canadiana.ca parl.canadiana.ca/view/oop.debates_HOC2403_05. The title of the present essay is drawn from his speech.

[24] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 24(1),(2) and 52 [Charter]; Harris, supra note 12 at 100.

[25] Vincent, supra note 11 at 173. More information on John Peters Humphrey’s role are available on New Brunswick Human Rights Commission’s website, online: www.gnd.ca www.gnb.ca/hrc-cdp/humphrey-e.asp.

[26] Reference re Secession, supra note 3, at para 63.

[27] United States v Ferras, [2006] 2 SCR 77, at para 19.

[28] R v Rahey, [1987] 1 SCR 588, at paras 97-100.

[29] R v Lindsay, 2008 BCCA 30 (CanLII), at para 20.

[30] Galati v Canada (Governor General), 2015 FC 91 (CanLII), at paras 72-74.

[31] R v Jebbett, 2003 BCCA 69 (CanLII), at para 4.

[32] Stéphane Bégin, “La liberté d’Yves Martin réclamée”, Le Quotidien (29 September 2015) 2.

[33] Habeas Corpus Act, 1679 (UK), 31 Cha II c 2, online: legislation.gov.uk www.legislation.gov.uk/aep/Cha2/31/2/contents.

[34] Act of Settlement, 1700 (UK), 12 & 13 Will III c 2, online: legislation.gov.uk www.legislation.gov.uk/aep/Will3/12-13/2. The original version provided that judges can only be removed for cause with Parliament’s consent, confirming their judicial independence.

[35] Wood v Schaeffer, [2013] 3 SCR 1053, 2013 SCC 71 (CanLII) at para 3.

[36] Roncarelli v Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121 at 184.

[37] Eva Prkachin, “Better Late Than Never: Politicians Are Speaking Up Against Bill C-51”, Huffington Post (16 February 2015), online: www.huffingtonpost.ca.

[38] Jenny Uechi, “Academics denounce retroactive long gun legislation in open letter to Harper”, National Observer (29 September 2015), online: www.nationalobserver.com.

[39] Audrey Macklin, “Respect the weight of 800 years of law in Khadr’s bail”, The Globe and Mail (27 April 2015), online: www.theglobeandmail.com.

[40] Marco Bélair-Cirino, “J. Michel Doyon entend garder une ‘distance nécessaire’ de l’arène politique”, Le Devoir (25 September 2015), online : www.ledevoir.com.

[41] Leslie MacKinnon, “Royal Proclamation of 1763, Canada’s ’Indian Magna Carta,’ turns 250”, CBC News (6 October 2013), online: www.cbc.ca.

[42] Reference re Secession, supra note 3, at para 44.

[43] Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 SCR 158 at 186 (McLachlin J).

 

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